What was wrong with the reasons ET 1400500 capability v conduct
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  • 1. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 1 of 39 BETWEEN: MR DOUGLAS GARDINER CLAIMANT AND EXSTO UK LTD & OTHERS RESPONDENTS Call for case review 1400500/2011 at a hearing for wasted costs. Mr Douglas Gardiner (Capability) v Peninsular Business Services (Conduct) During this appeal for costs and a case review the claimant will refer throughout to a company called HR Genius their own description is as follows. “HR Genius' are the number one provider of Employment Law and Health & Safety services in the UK. Since we were established in 1983 our experience has enabled us to provide our services to over 26,000 businesses. HR Genius is integrated into their HR and health & safety departments allowing business owners, directors or senior managers to save time on worrying about staff- related or safety issues and concentrate on what really matters; making their business a success. The size of HR Genius ensures that we have been able to attract and retain the very best employees from the HR, Health & Safety and Legal Services Industry and create this specialist service for every business. Our financial strength means that we are able to offer this at a fraction of the real cost and guarantee the continued quality to each and every one of our customers. We can guide you through any issue you may have, whether related to Employment Law or Health & Safety at work. Our years of experience allow us to offer an ever-increasing list of services to mirror an in-house human resources department.”
  • 2. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 2 of 39 With the emphasis upon a) “HR Genius is integrated into their HR and health & safety departments allowing business owners, directors or senior managers to save time on worrying about staff-related or safety issues and concentrate on what really matters; making their business a success.” b) “The size of HR Genius ensures that we have been able to attract and retain the very best employees from the HR, Health & Safety and Legal Services Industry and create this specialist service for every business.” c) “We can guide you through any issue you may have, whether related to Employment Law or Health & Safety at work.” The reason for today’s hearing to recuperate the losses sustained by the claimant since an industrial accident at the premises of Exsto UK on the 09/12/2010. With the guidance of Peninsular Business Services the accident should never have happened
  • 3. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 3 of 39 In Italics the Judgment 1400500/2011 EMPLOYMENT TRIBUNALS Claimant: Mr DIGardiner First Respondent: ExstoUKLtd Second Respondent: Mr J Baxevanidis Third Respondent: Mr Jean-Marc Penelon Heard at: Bristol On: 7 September 2011 & 8 September 2011 Before: Employment Judge Owen Mr A Edwards Dr B Tirohl Representation Claimant: Assisted by his father, Mr J Gardiner Respondents: Mr Reynolds of Peninsl)la Business Services Limited JUDGMENT having been sent to the parties on 23 September 2011 and reasons having been requested on 24 September 2011 in accordance ,with Rule 30(5) of the Rules of Procedure 2004.
  • 4. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 4 of 39 The introduction of the judgment makes the statement there were five staff this may be a trivial observation but there were in fact seven staff. In 2006 there were thirty, now only two remain as employees in the UK. REASONS 1. “These are claims for unfair constructive dismissal, race discrimination, disability discrimination and unpaid or withheld wages, and/or holiday pay. The core facts are as follows. Mr Gardiner worked for Exsto from 18 August 2003 until, he gave three months notice of resignation on 28 February 2011 so that his employment actually ended on 28 May 2011. He brought these proceedings during that notice period. The facts have been disputed to a significant extent, so we record what is agreed. The claimant was Design Manager in the Exsto office in Wiltshire with just five staff including not only the claimant but his manager Mr Baxevanidis who is Greek. Line management was in France and the relevant managers are Mr Penelon, Sales Manager and Mr Torres, Chief Executive. The company is a supplier of Polymer solutions and Mr Gardiner was the only designer in the UK office. He designed parts and concepts for the petrol and gas industry.” Employee Position 2010 Current Position Service Education Mr Alcock Project Engineer Resigned 2002-2011 Degree Mr Baxevandis (Greek) General Manager Oil and Gas Business Manager 2003-Present Degree Mr Gardiner Design Manager Unfit for work 2003-2010 A level Mr Lewis Accountant Made redundant 2005-2011 Chartered Mr Farrell Project Manager Resigned 2005-2012 Degree Mr Bezard (French) Proposals Engineer Sales Engineer 2006-Present Degree Mr Carew Project Engineer Resigned 2009-2011 Degree
  • 5. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 5 of 39 2. The conflict on the facts has to be resolved by the Tribunal. We will begin by dealing with issues relevant to the contention of constructive unfair dismissal. The claimant set out the core allegations in paragraph 5.2 of his ET1. There are various matters capable individually or collectively of amounting to a fundamental breach or breaches of contract. We remind ourselves that the burden is on a claimant to satisfy us of three matters on the balance of probability if he is to show that he was constructively dismissed. Firstly, he must prove that there were individual or collective breaches which amounted to a fundamental breach of contract (which in this case is asserted to be the duty of trust and confidence). Secondly, a claimant must show that he resigned entirely or mainly because of that and thirdly, he must prove that he did not act too hastily or delay too long. Those three requirements are of course cumulative. The claimant must prove all three. In summary i) he must prove that there were individual or collective breaches which amounted to a fundamental breach of contract (which in this case is asserted to be the duty of trust and confidence). ii) a claimant must show that he resigned entirely or mainly because of that iii) he must prove that he did not act too hastily or delay too long
  • 6. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 6 of 39 3. There has been a considerable amount of evidence in this case and some of the allegations and some of the matters recorded in the claimant's documents offer long standing complaints and resentments that go back long before this matter surfaced in early December 2010. We have looked at those earlier issues and do not believe that they were matters that amounted to any breach of trust and confidence. We have concluded that the claimant can only succeed if he 'can satisfy us by reference to the allegations made in the ET1, which are in themselves numerous, but all arise in December 2010 or later. With those issues in mind, therefore, we find the facts as follows. The observation is correct however it must be pointed out that the claimants’ original grievance related to the conduct of the company on the 9th of December involving a “confidential” discussion with Mr Penelon on the 9th of December and in writing was: From: Doug Gardiner Sent: 10 December 2010 06:41 To:John Baxevanidis Subject: Sickness Dear John I will not be in the office for the rest of the day due to stress, from which I was suffering already, but was aggravated by bullying in the office yesterday morning. I will be seeing my Doctor at 10:30am today. Kind Regards, Doug GARDINER. The later grievances were in response to a letter received by the claimant on the 16th of December and related to the conduct of the company from the 6th of December 2010 onwards as does the ET1. It was the company under the guidance of Peninsular Business Services that stirred up the past making illegal deductions from salary to disrupt and undermine the claimants’ claims, thus creating further confrontational issues that were not part of the original complaints and well beyond the capability of the claimant who by that time was and remains unfit for work.
  • 7. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 7 of 39 4. The claimant was well represented by his father, a lay person, and these events arose because at the end of November he visited Mr and Mrs Gardiner senior in Spain, where they have lived in retirement for many years. He was due to return to the United Kingdom on Saturday 4 December 2010, but was unable to fly from Alicante airport because of a day long strike by Spanish air traffic controllers. Mr Gardiner therefore returned to his parents home and was in due course transferred to a flight which left Alicante early afternoon of Wednesday 8 December 2010, which meant that he did not return to work on the Monday but only on Thursday 9 December last. On 4 December the claimant had telephoned a colleague, Mr Bezard, and he had asked that colleague to tell their manager Mr Baxevanidis that he would be unable to return to work until Thursday 9 December. Mr Bezard duly did so. 5. The claimant reported to work at 7.45 am on Thursday 9 December. When Mr Baxevanidis was in the office he tried to speak to him but was told that they should have a chat later. The claimant objects, he says, to the brisk way in which he was told to do so, but we do not find that was objectionable, and it is clear that the manager wanted to talk to the claimant when they could be alone, the office being small. An opportunity arose at about 10.30 am when other members of staff were in a separate room. That conversation is agreed to have taken no more than 5 or 10 minutes, but it is the background to everything that happened later. The claimant's case and his central complaint of fundamental breach of contract is that he was bullied and harassed by Mr 'Baxevanidis. The employer's view is that this was a conversation that he was: entitled to have without any convening formalities on a day to day basis with someone whom he managed; the only proviso being that it ought to be private. (As noted it was) The fact “we do not find that was objectionable” Is a point of view, that is beyond the powers of the tribunal? The claimant felt threatened, it was clear the manager wanted to speak to the claimant he was unsettled by the comments relating to the manager of another employee, still very unsettled by that earlier event the claimant politely knocked on the closed office door of the manager approaching the manger to find out the reason for the threatening behaviour. The approach was made in a private office separated from other offices by doors and a corridor, this office was the most suitable place to have the
  • 8. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 8 of 39 discussion. The brisk treatment received unsettled the claimant further and later for the manager to come unannounced to corner the claimant in his office at his desk when all of the employees were in a pre arranged meeting was unacceptable. 6. We have heard evidence from both parties and seen the letters that were written about that meeting and our conclusion is that the claimant was somewhat anxious about his position and wanted to explain it at some length. He had already tried to have this chat earlier, On the other hand Mr Baxevanidis wanted to tell the claimant why he, the Manager, was very unhappy. Mr Gardiner has confirmed that although he described the manager's conversation as "vicious" and "aggressive" Mr Baxevanidis did not shout or use offensive or abusive language. And we so find. The fact “the claimant was somewhat anxious about his position” Is true as stated in the e-mail dated 10/12/10 The true fact of the evidence is the claimant was anxious and wanted to establish the reasons.. for the abrupt comment of Mr Bezard “the boss is not happy with you” and then the surly attitude of Mr Baxevanidis. “we’ll have a chat later” – “get on with your work” which are in the right context reasonable requests it was the delivery that was unacceptable. The fact The claimant “wanted to explain it at some length” Is also an error, and is based upon the statement of Mr Baxevanidis written a full week after the event and unlawful salary deductions, in truth the claimant
  • 9. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 9 of 39 was rendered virtually speechless by the unwelcome advances of Mr Baxevanidis who in a vicious attack reeled of an unacceptable lengthy explanation of his position without even considering the claimants capability to deal with the situation. Mr Baxevanidis had mixed conduct with capability. The claimant is in total agreement with the public approach of HR-Genius the approach of Mr Baxavanidis was unacceptable, bad for moral and the company, the message is the one the claimant tried to deliver to the tribunal however the claimant was at the time incapable of such argument. Staff Problems: Conduct or Capability The claimants conduct was in error labeled as unacceptable by MR Baxevanidis and other staff but as the HR Genius website states: “Many employers confuse conduct and capability” The claimant was unintentionally trapped in Spain by industrial action in an issue of capability not conduct. The claimant as per the company handbook had dutifully informed the company of incapability; the company was aware but by its conduct converted the claimants’ incapability into unacceptable conduct. Simply: the claimant had no choice (capability) the employer did (conduct). Extract from the HR-Genius “Staff Problems: Conduct or Capability “If one of your employees is not working to the level you expect, you need to tackle that by following the correct procedure depending on whether or not the problem is down to conduct or capability. An employee’s failure to work to the expected standard, their behaviour, their attendance or how they follow instructions could be as a result of a conduct or a capability issue, and you need to identify which it is.
  • 10. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 10 of 39 Many employers confuse conduct and capability issues and you need to keep them separate. You need to look at why your employee’s performance is below standard and determine if it is because they cannot work to the required standard or because they will not. If they cannot, then it is a capability issue, whereas if they will not, then it is a conduct issue.” Capability Capability focuses on what an employee is or is not able to do. Capability covers more than just skills, as it can also look at attitude, flexibility, qualifications and health. Where there is a capability issue, you need to identify the problem and see what you can reasonably do to help your employee fix that problem. The problem in capability situations is whatever the employee cannot do that you are concerned about. This can be a failure to meet performance levels, not passing a test, poor attendance or any other issue where the employee is unintentionally failing to perform to the level expected of them. It is the fact that it is unintentional that makes it a capability issue because they are not choosing to work below the standard you want. The cause of the problem will help you to work out how to address it. Capability issues usually fall into one of two categories: skill or ability. You need to work out if the problem is because they do not have the skills necessary to do the job to the standard you want or because they do not have the ability to do so. Where the employee does not have the skills, you should see if you can help them to gain those skills. This would generally involve some form of training as well as setting targets so that you can see how they are improving. The amount of training, the difficulty of the targets and the time allowed for improvements would all depend on what you can provide and how quickly you need them to improve. Training does not necessarily have to be a long and involved process. It could be as simple as sitting down with the employee and showing them what to do and then giving them a reference guide to refer to afterwards to remind them of what is needed. Where the employee doesn’t have the ability to perform to the required standard, then it is unlikely to be something that can be fixed by training. Unlike skills, which can often be picked up, if the ability is not there, it can rarely be gained through training. In these circumstances, you should look to see if you can move work around to make up for the lack of ability or see if there is other work better suited to this employee.
  • 11. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 11 of 39 Conduct Conduct focuses on what the employee is or is not willing to do. Unlike capability, conduct issues are as a result of choice. If an employee will not work in a certain way, or to the required standard, then they are making a conscious decision not to do what is expected of them even though they are able to do what is wanted. An employee can expect to face the consequences of their choice and should understand that they may be more severe than if it was a capability issue. Conduct issues fall into three areas: misconduct, serious misconduct and gross misconduct. The same act can fall into any of these three categories depending on its severity. For example, theft could come into any of the categories depending on the items stolen. Theft of office supplies is likely to be seen as misconduct, theft of photocopying resources by copying a large number of documents without paying anything for it may be seen as serious misconduct and theft of petty cash will probably be seen as gross misconduct. However, this will not be the same in each company and some businesses, particularly those in the retail sector, will take a zero tolerance approach to theft. The most serious forms of unacceptable behaviour are known as gross misconduct and generally include acts like theft at work, violence at work, harassment of other employees or customers and breach of the health and safety rules. It is important to remember that, in order to be considered as gross misconduct, the behaviour has to be of the sort that is so severe that, if found, will bring the contract to an immediate end. For this reason, issues that can be considered as misconduct in some industries may be considered as gross misconduct in others. If the working relationship can still continue, then it will be misconduct or serious misconduct depending on the severity of the issue. An important factor for misconduct is that your employees should understand the possible consequences of their actions. As misconduct is about choice, you need to make sure that they understand the choice that they are making. They need to decide if they are prepared to risk the consequences of not doing what is expected of them. If they could not be reasonably expected to know that what they are doing is wrong then it will not be a conduct issue.
  • 12. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 12 of 39 It is not surprising at all that the claimant reacted the way he did. He was totally shocked and as found by the tribunal “taken aback by criticism” from Mr Baxevanidis. 7. The first thing that the manager wanted to say was that the claimant should have phoned in to report direct to him. Mr Gardiner agreed that he had not but contended that he had not got the manager's telephone number. That may have soured things further because after hearing the evidence our conclusion is that that could not be true. It is inconceivable that an intelligent man who had worked for Exsto for several years did not know the local Bath telephone number of the office. He had a land line available at his parent's home, and if he did not have a number for the personal mobile of Mr Baxevanids he could have obtained this from his friend and colleague Mr Bezard. He acknowledged also then that he did not make any attempt to get an earlier flight than that offered by the airline for 8 December.The manager's comment was that he (Mr Baxevanidis) should have been contacted direct and that the claimant should have tried to get an earlier flight, because everyone knew that Exsto's office was a very busy one. Mr Baxevanidis also pointed out that he, the Manager, had looked on line and found flights available for the previous Monday. We accept that the claimant was taken aback by criticism. However, this was a conversation that the manager was entitled to have. We do not find that Mr Baxevanidis ever went beyond what was permissible in being direct and critical of an employee. This whole paragraph is objectionable and is the root of the claimants’ current incapacity. No matter the circumstances no manager is permitted to create a hostile environment for employees. The criticism was and remains unjust and questioned the integrity and capability of an employee without leeway. The claimant did not know or have the mobile number of Mr Baxevanidis. The reason as explained to Mr Penelon during investigation was the claimant had broken his mobile phone on the 8th of August losing all of the numbers stored thereon, why did the claimant have Mr Bezards number? Mr Bezard had sold the claimant a car at the end of October various calls relating to that exchange had taken place. Crucially Mr Bezard could have also said that the claimant needed to phone the office or Mr Baxevanidis as is industry practice for managers to do with unexplained absence, he should have called the claimant first thing on Monday for an explanation.However the call was not necessary Mr Baxavanids
  • 13. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 13 of 39 had accepted a message! As he had many others but in this case alone had formed a mistaken opinion of the situation he had confused capability with conduct. With his capability to travel restricted by extraordinary circumstances by international law the claimant was given by Easyjet the earliest return flight available that being on the 8th of December. From the HR-Genius it is clear that Mr Baxevanidis made the fundamental mistake of confusing conduct and capability. The claimant is in total agreement with the public approach of HR- Genius the approach of Mr Baxavanidis was unacceptable, bad for moral and the company, the message is the one the claimant tried to deliver to the tribunal however the claimant was incapable of such argument. Absence due to extraordinary circumstances Be it illness, accident, adverse weather, ash clouds, industrial action or terrorism the effect is the same, people are prevented from being where they said they should be. These factors are issues of capability not conduct. For an employer to find an employee guilty of misconduct for being unable to get to work due to extraordinary circumstances is unacceptable. Put simply again: the claimant had no choice (capability) the employer did (conduct).
  • 14. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 14 of 39 “HR Genius Case Study: Absence Due To Weather (read also extraordinary circumstances) We appreciate staff who have made it into the office but, in relation to those that did not come in, do they get paid or do we need to encourage these employees to take it as holiday? There are a number of different things that you need to look at here but, as with all things, your starting points are your contract and staff handbook. Look to see if you have any adverse weather policies and, if you do, then follow those. You are only obliged to pay staff for any work that they have actually done. If you wish, you can give your employees a choice of taking the time off as paid annual leave and using up some of their holiday entitlement for it or having it as unpaid leave. In light of the weather conditions, you could consider allowing staff to work remotely so that the work can still get done even if you would not normally allow this. This extra work will take some of the pressure off those employees who did manage to come in which will help everyone. Consider what you have done in the past where people have been prevented from attending work through some other natural problem, such as previous floods or snow, and make sure your actions now are consistent. Remember that the adverse weather conditions were not your employees’ fault, so do not treat them as if they have deliberately not turned into work to make life difficult for you. Bear in mind the impact on morale by paying for these days or making employees use up their annual leave for an issue beyond their control. If your workforce is already unhappy because of a pay freeze, then their morale will drop further if you make them use up holidays, or lose pay, in these circumstances. However, paying your staff even when they could not manage to make it in to work shows them that you do value them and the benefit to morale and the knock on effect on performance may well be worth far more than the actual salary for those days. It is important that, as a company, you do not given the impression that you think the people who did not attend work are in any way less dedicated than their colleagues who did attend or that they were simply shirking off work. There is no doubt of the claimants dedication to his employer he had tried to notify Mr Baxevanidis of his incapability much earlier than was strictly necessary (Mr Bezard had stated he would tell Mr Baxevanidis on Sunday). Without a call from Mr Bezard or Mr Baxevanidis to confirm the claimant knew no different. He had accepted calls at personal cost from the office during the flight delay, he returned to the office at the earliest opportunity that his capabilities and the law allowed.
  • 15. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 15 of 39 8. After comments had been exchanged Mr Baxevanidis pointed out that the company was not obliged to pay the claimant for three days when he had not worked. The parties agree that that comment was made and also that the claimant's immediate response was "Well if that's the case I'm ill, I'm going home ok?'. He picked up his coat and left immediately. Our conclusion, therefore, is that the manager was guilty of neither bullying nor harassment nor anything else that amounted to a breach of contract. It is also clear that Mr Gardiner only said he was ill at the end of the discussion and did not say what was wrong or stay to explain. This was a disciplinary hearing without due process, as per the ET1. The only document relating to the hearing was produced a week later by Mr Baxevanidis. The contents of which are objectionable but by then it was too late serious damage had been done by the employers poor conduct of proceedings the claimant had suffered personal injury. There are procedures in place governed by law to protect employees from overzealous management. One of these is self certification of illness if an employee say’s they are ill it is a question of capability not conduct. Employers have to take what is said at face value it is only later after investigation and consultation with an employee’s Doctor or employers’ medical advisors can ill health be an issue of conduct. The company failed to follow any of these procedures designed for health and safety at work. Mr Baxevanidis had changed his story to suit which in most circumstances is unacceptable behaviour.
  • 16. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 16 of 39 Bad Attitude When reading the description of bad attitude from HR-Genius it is a perfect fit for that of Mr Baxevanidis, he has serious conduct issues which have not been dealt with in the appropriate manner by the company. Despite this, as a willing and conscientious employee with many good years service and experience, the claimant, as was his duty had complied with all reasonable instructions issued by the company and at times some that were not, however in this case the method used by Mr Baxevanidis to deal with the claimants capability issues were damaging to the company and the individual and therefore gross misconduct. It was only after the claimant became incapacitated by personal injury and had been given authority to go home, that in a state of panic and gross incapacity he refused to obey the orders and unwelcome advances of Mr Baxevanidis. With no choice the claimant to what is now to personal detriment had to allege bullying and harassment. Again: the claimant had no choice (capability) the employer did (conduct). Extract from the HR-Genius “Dealing With An Employee’s Bad Attitude Reasonable Management Instructions Employees have a duty to obey any reasonable management instructions given to them. A defiance of authority or a refusal to obey these instructions can be classed as insubordination. Whilst employees may prefer their managers to adopt a particular style, they have to accept that their managers are entitled to manage them in whatever way they see fit. As long as employees are being asked to do work which is reasonably connected to their role, you are entitled to exercise a level of control over how employees carry out their work. Provided that it does not turn into bullying, the extent of that control is up to you. Bad Attitude Attitude can be difficult to address because it is less about what work is being done
  • 17. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 17 of 39 and more about how it is being done. Employees have different personalities and you have to allow for certain differences in approach and temperament. However, if they choose to remain in your employment they should carry out their work with good grace. It can be hard to define what a ’bad attitude’ is but examples can include: Disruptive behaviour Being overly rigid Disparaging the company at work Excessive negativity Undermining others Unconstructive complaints Some examples of ’bad attitude’, such as bullying or deliberately refusing to follow procedures or instructions, can fit more clearly into the concept of misconduct. Identify the issue Before labelling employees as simply having a ’bad attitude’, talk to them to see if there is a reason for the behaviour. An employee might be refusing work because he/she is genuinely overworked or do now know how to carry out a particular their task. There could be other work-related reasons, such as bullying or the interference of others, that is causing this sort of behaviour. If an employee is constantly complaining about colleagues or a method of working, check to see if this might be a reasonable complaint. If the ‘bad attitude’ is one you are told about but have not observed, you should verify it for yourself. It could be a personal situation or problem manifesting itself in an inappropriate way at work. Check if there are any underlying issues that need to be addressed or for which you might need to make reasonable adjustments. Resolving the problem Once you have identified the problem, you can talk to your employee about what needs to change and agree how this will be done. Be specific. Telling employees to ‘improve their attitude’ will not get things done. Where possible, address any issue that the employee has highlighted as causing the problem. If the behaviour continues, then you may need to resort to disciplinary procedures. It is likely that any problems will show up within their work, so keeping clear records will help you address this. Be consistent in your approach: if you chastise some employees for having a ‘bad attitude’, but ignore others, you may leave yourself open to a complaint of unfair and unequal treatment.”
  • 18. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 18 of 39 The Disciplinary Procedure For the safety of both employer and employee the procedures must be followed. The unacceptable behavior of Mr Baxevanidis had destroyed the purpose of the procedure. A primitive attack of the claimant in direct contradiction of the mechanisms of public policy to provide safe working environments for all employees had incapacitated the claimant. Again: the claimant had no choice (capability) the employer did (conduct). Extract from the HR-Genius “The Disciplinary an Procedure Should you be in a position where you have to deal with a staff problem, you may have to look at using a disciplinary or grievance procedure. If so, you need to follow a fair process. The ACAS Code of Practice provides a guide to the steps you should follow as far as possible, although you may have your own procedures that are more extensive. There are a lot of similarities between both the disciplinary and grievance procedures because they are both based on the same principle, namely that the employee should be given an opportunity to prepare and explain fully their position. If you keep this principle in mind as you go through the process, it will help you to work out what you need to do next if you are unsure. The Disciplinary Procedure The principle behind any disciplinary procedure is to help employees to improve their performance. It is not just about punishment. Any procedure should be followed promptly and fairly. It is important to remember that the process must be carried out with an open mind. Do not assume that any allegations are true or that the employee must be in the wrong. Investigate When an issue of potential misconduct has occurred, carry out an investigation. Where possible, the person carrying out the investigation should not be involved in any other stage of the disciplinary process. Try to gather all the relevant evidence as quickly as possible, including any witness statements, before memories can fade. Depending on the nature of the issue, you may need to carry out an investigation meeting with the employee. While your employee has no right to be accompanied at an investigation meeting, it is good practice to allow this anyway.
  • 19. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 19 of 39 No decisions should be made at any investigatory meeting. The purpose of the meeting is to get an initial view on what happened and to decide if it needs to be dealt with formally. If it is clear that there is no issue, then it should not continue. However, this does not mean you should only move things to a formal hearing if you have decided that the employee is in the wrong. The purpose of the disciplinary procedure is to look formally at what happened and the reasons for it so that things can be addressed and resolved. The investigation will be to determine if there is sufficient evidence to show that an issue of misconduct potentially occurred. The disciplinary hearing will decide if it was actually misconduct and if any disciplinary action is warranted. Depending on the nature of the issue, you may need to look at suspending the employee. Any period of suspension should be kept under review, will be on full pay, and should be kept as short as possible. You should also make it clear that it is not a disciplinary action in and of itself. Arrange a Disciplinary Hearing If you decide that this matter does need to be dealt with at a formal disciplinary hearing, write to the employee to invite them to the hearing. In your letter, set out: when and where the hearing will take place who will be carrying out the hearing what the alleged issues are the possible consequences of any decision the right to be accompanied by either a trade union representative or a workplace colleague enclose copies of all the evidence you are going to look at in the hearing. The hearing should be held without unreasonable delay but you do need to give them sufficient opportunity to prepare. When deciding how much notice you need to give, consider the amount of paperwork your employee will need to look at in order to prepare. Your employee can request a postponement of the hearing for up to five days to allow their chosen representative to attend. If the employee requests a longer delay, or a delay for any other reason, then it is up to you to decide whether or not to agree to that. You need to be reasonable when considering such a request. If you are unsure, think of whether or not this is something you would reasonably want if you were in the employee’s shoes. At the Hearing Explain the issue and go through all the evidence. Give your employee the chance to explain their position and address the allegations. Let them ask questions, present evidence and call witnesses. You should ask them to give you advance notice of any witnesses they wish to call and, if possible, they should be interviewed by the investigating officer. Have someone accompany you to take minutes of this meeting and, if possible, everyone should sign them at the end of the meeting to confirm that they are an accurate record of the meeting.
  • 20. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 20 of 39 If the employee wants to be accompanied, they can make a reasonable request for their companion. While what is reasonable will depend on the individual circumstances, they need to be suitable. It would not be reasonable to ask for someone from a remote location to act as a companion if there was someone suitable on site who was willing to act. Similarly they should not insist on someone who would make a fair hearing difficult. They cannot insist on someone being their companion who does not want to act in that role. The companion’s role is more than just a note taker. They are able to speak at the hearing to put forward and sum up the employee’s case, raise any issues they are concerned about and confer with the employee. However, the companion’s job is to help the employee present their case, not present it for them. The employee is the one who has to answer your questions and the companion cannot speak at the hearing if the employee does not want them to, and they must not prevent you from explaining the case. Further investigation You may decide, after hearing from the employee, that further investigation is needed. If that happens, try to get this further evidence and reconvene the meeting to go through it with the employee, giving them reasonable notice and the same right to be accompanied as before. Once you have heard all the evidence, you need to consider it and reach your decision on whether you need to take any disciplinary action and, if so, what type of action that will be. Any action you decide to take must be in line with your disciplinary procedure. Communicate your decision Once you have reached your decision, you need to write to your employee setting out what your decision is and why you have reached it. If you are issuing a warning, set out what type of warning it is and how long it will last for. If it is a final warning, spell out to your employee that any further act of misconduct while the warning is active is likely to result in their dismissal. Let your employee know that they have a right of appeal and set out what they need to do if they wish to exercise that. Right to Appeal If your employee chooses to appeal, then the appeal hearing should be carried out by a manager who has been uninvolved in the process so far, if that is reasonably possible. Follow the same process for arranging and carrying out the appeal hearing as you did for the disciplinary hearing. The appeal decision must also be provided in writing. The appeal decision is normally final unless your procedures allow for a further appeal.
  • 21. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 21 of 39 9. The claimant also complains about subsequent conduct of his manager. Both parties agree that Mr Baxevanidis called the claimant at home an hour or two later. Mr Gardiner objected then and complains now. In his own words he acknowledged that he 'shrieked' "leave me alone this is harassment'. He may have made some other comments, neither party is certain, but he certainly then put down the telephone. We need to record two things; first of all that it was perfectly proper for the manager to make that call, and secondly, that the claimant's reaction was inappropriate. It was not the subject of any disciplinary action, (although it might have been) but it did do more damage to the working relationship. A short time later Mr Baxevanidis tried again by leaving a voice mail in the hope that the claimant would calm down and listen to it. He has been criticised by Mr Gardiner for making these calls when the claimant says that he was ill, but it must be remembered that the manager was only told that the claimant was ill at a late stage in the conversation and in response to the statement about non-payment of three days salary. His message asked Mr Gardiner to get in touch to talk about matters amicably because otherwise the matter would have to follow company procedures. None of those actions were remotely "bullying". The call made is one that should have been made on Monday morning when it would have been perfectly proper. The claimant had been injured by the unacceptable conduct of Mr Baxevanidis. The call was made after consultation with Peninsular business Services. Mr Baxevanidis stated in an abusive manner “I have called our HR people and they say what you are doing is wrong” he ordered the claimant to return to work. The telephone call was entirely inappropriate and amounted to discipline by phone. The claimants’ reaction of “leave me alone this is harassment” was entirely appropriate in the circumstances. 10. The claimant did not get in touch to discuss amicably but did send an email the following day (10 December last) in which he stated that he would not be in the office for the rest of the day due to stress from which he was suffering already, but which was aggravated by "bullying in the office yesterday morning". He added that he would be seeing the doctor. The manager wrote on the following Monday 13 December last an email at page 32, which again has been criticised by the claimant but which in our view is an entirely proper one; It records that if Mr Gardiner thought that he had been bullied, he should raise a formal any grievance. Mr Baxevanidis went on to say that he would arrange for another manager to deal with any grievance; that no strict time limit would be imposed and that if Mr Gardiner did not feel up to it, he needn't reply. We note at this point that the claim that Mr Baxevanidis was "left in change of my welfare" is clearly incorrect. The statement “did not get in touch to discuss amicably” is a gross error.
  • 22. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 22 of 39 From evidence presented at the hearing The claimant spoke to Mr Penelon, spoke to and e-mailed Mr Bezard on the 9th of December, e-mailed the HR department in France on the 13th of December but this was ignored, e-mailed Mr Baxevanidis and called Exsto UK on Friday the 10th to speak to Mr Baxevanidis but he was in a meeting and never called back. The claimant also visited the office on Monday 13th but again was ignored by Mr Baxevanidis as was an NHS mediator appointed on the 13th of December to assist the claimant back to work. The claimant sent several e-mails to Mr Baxevanidis to which he replied. Mr Bezard sent several e-mails to the claimant including warnings and profanities. Due to snow and the letter being sent recorded delivery the letter was not received until several days after the unjust investigations into the claimants conduct and the unlawful deductions from salary which were done under the instruction of Mr Baxevanidis by which time it was too late more damage had been done! 11. The next thing that occurred is that the company did not include the three days salary for the claimant, in the pay run of 15 December 2010. That is precisely what the claimant was told would be done. The conclusion that, the Tribunal reaches is that this was not a question of a company making an unauthorised deduction, it was an organisation saying, we won’t pay you if you don't come to work unless you have either agreed it advance or you are sick. The correspondence about which the claimant also complains is in our view. Not confrontational or unsympathetic and that does not amount to a breach of contract on the part of Mr Baxevanidis. It was agreed at the tribunal hearing that the company was entitled to withhold the salary, what was not agreed was why, when and how. If these were conduct issues which they were not then the claimant was entitled to the legal protection afforded by the disciplinary process. As a salaried employee there is due process to be followed before deductions can be made this protection is afforded by the law. Once the company had paid back the theft, the claimant would have returned the money when he had the capability to do so it was after all Christmas.
  • 23. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 23 of 39 The claimant was told nothing of another deduction from salary that despite the evidence was mistakenly missed by the tribunal. These two deductions amounted to theft by the company, if the first was not then the 2nd most definitely was. 12. The next allegation made by the claimant: is that of an unauthorised deduction without due process. The claimant agrees that Mr Baxevanidis sent out an email to Mr Gardiner and to other staff members on 8 February 2007 at a time when the respondents traded as Dunlaw Engirieering Ltd and when they had a slightly larger workforce. This email was received by the claimant and was also displayed on the notice board at the company's then premises for several months. The instruction about absence from work; and the need to report to the manager (or another employee, Mr King, who is no longer there) is clear. The email also says (our emphasis) "time out of work which has been unauthorised will not be reimbursable from the company i.e. you will NOT be paid for that period regardless of the justification". Unauthorised absence is conduct that warrants a proper and fair disciplinary process. The first deduction for 3 days is classified as unauthorised absence where it was in fact unpaid leave. Although the evidence was presented, 5.5hrs deducted for non attendance as unauthorised absence on the 9th of December 2010 after the industrial accident occurred was not considered at all by the tribunal. This deduction was made without adherence to any procedure or notification whatsoever. However Mr Baxevanidis it is assumed had consulted with Peninsular Business Services and was changing his story to suit. The process adopted by the company was hostile and objectionable. As Judge Owen later quite rightly accepted the claimants’ arguments that company absence memorandum does not apply, referring the claimant to conduct issues in the company handbook. This part of the Judgment needs reviewing in the context of the letter of the tribunal dated 19th of June 2012.
  • 24. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 24 of 39 13. At various stages the claimant has complained that the respondents did not adopt a proper disciplinary process. It again needs to be re-emphasised that this was not a disciplinary decision, it was a common concept that an employer is entitled to apply, namely if you do not turn up for work you will not be paid. And it needs to be recorded also that no disciplinary proceedings were ever taken by the company against Mr Gardiner. He was criticised orally by his manager for making insufficient effort to get an earlier flight. But such allegations were never pursued by the respondents by way of discipline (although they could have been). The claimant acknowledged very fairly in his evidence that the company was entitled to withhold payment but that he objected to the process. That of course is not what the claimant was saying during the course of the various grievance meetings or indeed in the ET1 application. The steps taken by the company were entirely appropriate, they were permitted by the memorandum and the claimant was warned about them on 9 December. He queried non-payment at the time and was given an explanation after he paid received that the relevant payslip. Unauthorised absence is conduct that warrants a proper disciplinary process this is for the defence of the incapable employee. The leave should have been classified as unpaid leave The process adopted by the company was hostile, objectionable and unacceptable. 14. The claimant's grievance procedure was commenced on 10 January 2011 and we merely refer to the details of the grievance contained in Bundle R1 between pages 96 and 100. It was heard on 20 January 2011 by the Sales Director, Mr Penelon. There is no dispute in the aforementioned fact We find no breach of contract or damage to trust and confidence that might be contended in respect of that process, including the hearing. During the hearing Mr Penelon constantly referred to “our HR people say we can do this” and later referred to “we do not have the in house expertise” the claimant can only guess he was referring to PBS as it was later explained by the company Ms Galland did not know what to do.
  • 25. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 25 of 39 Employee Conflict The “bad attitude” adopted by the company could never resolve the employee conflict in this case. Therefore the valuable advice of the HR-Genius is doomed to failure. Peninsular Business Services have to provide constructive advice to resolve issues. However that was not the case they chose to place the burden of bad attitude and poor conduct upon an incapacitated employee. Again: the claimant had no choice (capability) the employer did (conduct). Extract from the HR-Genius “Resolving Employee Conflict Disputes between employees are almost inevitable simply because nobody agrees with everybody all the time. However, there are things you can do to minimise the impact of any dispute. Prevention is better than cure Try to create an atmosphere of openness and respect: where employees believe that they are valued and feel listened to they are less inclined to take things out of proportion. Robust equal opportunities and anti-bullying policies provide the foundation for this. You need to build on your policies by ensuring managers understand how to recognise and effectively resolve issues within the workplace. In the event that a situation develops into a possible grievance it is important that it is dealt with promptly. Formal or Informal? Speak with the employee to identify the root cause of the problem and what is needed to make him/her feel that the matter has been resolved. Establish if the issue can be resolved informally but it is important that you give the impression that you are taking the matter seriously. Employees must know that it is their choice as to whether or not their grievances are dealt with through the formal process and that you are not trying to persuade them one way or the other. You should also make it clear that if the matter cannot be resolved informally then a formal procedure will still be open to them. Listen Listen with an open mind to employees’ complaints. The majority of grievances come about as a result of poor communication and perception. Try to put yourself in the employees’ shoes and consider how things look to them based on what they know, what was said and what they have seen. There may be a good explanation for what they are unhappy about but that may require them to be given information that is not in their possession.
  • 26. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 26 of 39 Investigate Once you’ve obtained details from your employee’s perspective you need to investigate if that perception is accurate. Most problems come down to issues of interpretation. What has been said or done may have been meant one way but interpreted another – often no-one is necessarily at fault for this. The difficulty in resolving the problem will depend on the willingness of either individual to accept that they may need to reconsider their position. You will need to look at what happened and balance whether the incident should not have occurred with whether the employee raising the grievance has been reasonable in taking offence. Respond Communicate your decision. If there is no acceptance of having acted inappropriately, then there is a high risk that the problem will recur so you need to take steps to demonstrate that you do not consider the behaviour is acceptable. Unfortunately, some employees can simply be unreasonable and will not accept that they may be in error. As far as they are concerned they have no need to change or apologise and their view is always the right one. Where this is the person complained of then the outcome of the grievance investigation might be that he or she needs to be put through a disciplinary process. This will also help to show that you have done everything you reasonably could in the event of a later dispute. If you do not tackle this behaviour appropriately then you can be seen as condoning it and later held responsible for their actions through what is known as vicarious liability. Feedback It is a lot more complicated when it is the person who has brought the grievance who cannot reconsider their position. All you can do in these circumstances is set out clearly and as objectively as possible the reasons for your findings. You can expect this matter to go through an appeal and that the employee will still not accept the findings. There is little that you can do other than talk to the employee to explain why you have reached the conclusions you have and make it clear that this matter has been fully investigated and will not be re-opened. Be vigilant You need to keep an eye out for people who raise grievances as a deliberate attempt to make life difficult for colleagues or managers or to avoid a disciplinary investigation. In these circumstances you need to consider each issue on its merit. Consider the nature of the complaint as well as its timing. You should also make sure that all employees understand that if a grievance is brought with malicious intent then this may result in them being put through a disciplinary process themselves. If handled correctly and sensitively grievances can be resolved amicably and can improve the working environment. You can use them as a learning tool to improve
  • 27. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 27 of 39 working practices and identifying training issues. They can also help promote better understanding of the diverse cultures within the workplace and sensitivity to others. All of this can have a positive impact on your workplace by making it more enjoyable which helps with morale, productivity and staff retention.” 15. The claimant later lodged a second written grievance and Mr Penelon agreed with Mr Gardiner that he would deal with that as a paper exercise and issue one decision on both grievances. The claimant waived his right to a second meeting for the grievance. There is no dispute in this fact 16. The decision was issued on 9 February 2011 and is at pages 106-112 of the Exhibit R1. The grievance was rejected by the Sales Director. That was a decision that he was entitled to reach. Within a short time on 12 February last the claimant lodged an appeal by letter at page 113 in our R1, this was referred to Mr Torres. In this context we note also that one of the claimants complaints is that the process was slow. That is certainly not our conclusion. Many issues were raised. Mr Gardiner exercised his right by sending long submissions to: the respondents and the point is illustrated because he wrote a second appeal to Mr Torres on 25 February 2011 some 13 days after his first appeal letter. 17. Mr Torres had prepared a response to some matters but that was not sent out until March and in the meantime, by letter of 28 February 2011 at page 118 in our R1, the claimant resigned. 18. The claimant contends that there was unreasonable delay on the part the employers. We do not so find, except that the actual decision on the two appeals were sent out sometime in March 2011 by Exsto But of course that was, not overdue at the time that the claimant resigned because (as noted) his resignation was sent only three days after that second appeal letter was submitted. For paragraphs 16 – 17 & 19 the claimant refers the tribunal to a letter dated September 1st 2011 and the response dated and the unanswered appeal letter of the 16th of April 2011 19. We need to deal with one other "breach" issue which was raised in the pleadings, namely that Mr Gardiner should have been given a phased return to work. That had been ventilated in correspondence with Mr Baxevanidis right at the outset of the correspondence. It was something that had been suggested by the general practitioner. The claimant objects to the response of his manager, but our conclusion is that his attitude was a reasonable one, namely; "we can talk about this when you are well enough to come back but it will be difficult because you are the only designer in the Wiltshire office". Mr Baxevanids with the assistance of Peninsular Business Services
  • 28. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 28 of 39 was changing his story to suit, adopting a must protect the company approach this is illustrated by the fact that in evidence he stated as such and also stated in evidence in relation to a computer that the claimant was deliberately attempting to “cause further inconvenience to the company”. One can only assume that in the eyes of Mr Baxevanidis that becoming unfit for work due to an industrial accident is classified a deliberate inconvenience to an employer? This coupled with a facebook comment visible to the claimant in Dec 2011 by Mr Baxevanidis illustrates his point further? “anyone who doesn’t show up for work for three days, deserves to be sacked hahahaha…”
  • 29. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 29 of 39 20. Finally, we note that one of the complaints is that the grievance was left unresolved. Of course what Mr Gardiner is saying is "you did not uphold my grievance". The grievances were answered by the' company and the first appeal was completed, again rejecting his contentions. It is certainly not the case that the matter was left unresolved by Exsto. So our conclusion in respect of constructive dismissal is that this claimant was not entitled to resign because there were no fundamental breaches of contract. Furthermore if it were necessary to so find we also quite satisfied that he acted too hastily in resigning when the appeal process was still ongoing. So his constructive dismissal complaint fails for two reasons. It is often said that to resign and allege constructive dismissal is a gamble because of the risk of failure and sadly that is the case here. The claimant refers the tribunal to the unanswered and unacknowledged grievance letter dated 16th April 2011. This letter gives the reasons why a reconsideration of resignation could not be considered. Medical records show the claimant could have been hospitalised at this time, in respect of the capability of the claimant the employers had done what they had to do including illegal activity not what they should or could have done. It was well beyond the capability of the claimant to decide the correct time to resign, as far as he was concerned he had already been dismissed for poor conduct several times by the company, at this point he dismissed his employer for gross misconduct that was the purpose of the resignation and by accepting it, the respondents had accepted their misconduct.
  • 30. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 30 of 39 The following paragraphs 20-28 refer to the claimants’ claims for disability they are quite clearly in error and show a decision beyond the capability of the tribunal. Under the Equality Act 2010, disability is defined as: “…any physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.” At the hearing there were Dr’s statements of fitness for 364 consecutive days advising the claimant to refrain from working. The claimant had his medical records but these were refused for consideration by Judge Owen. In a report dated Sept 2011 at the same time as the hearing the claimant was found to “have a significant level of disability due to anxiety and depression” six months later his condition had not changed. In a successful claim for industrial injury benefit the claimant was once again identified as disabled by impaired mental equilibrium. Is my employee disabled? This not a question an ordinary employer or employee has the capability to answer. The case of Hatton v Sutherland makes this clear, making a rock solid defense of ignorance. However Peninsular Business Services in their guise of the HR-Genius should know and do know, by their conduct they are using the loophole created by the ignorance of the other parties to create an insurmountable barrier for an incapacitated claimant to pass. The fact that the claimant is seen as incapacitated by significant disability by the DWP still does not deter Peninsular Business Services from using the loophole to further dispute the facts.
  • 31. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 31 of 39 “Is My Employee Disabled? Sometimes, the fact that someone is disabled is clear, whereas at other times it may not be quite so obvious. As an employer, you need to identify whether or not your employee is classed as disabled, along with the nature of any disabilities, in order to work out what, if any, reasonable adjustments you need to consider. Definition of disability Under the Equality Act 2010, disability is defined as: “…any physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.” Some conditions are automatically viewed as a disability. For example: a person who has cancer, HIV infection or Multiple Sclerosis (MS) is viewed as a disabled person from the point of diagnosis, even if the effects of those conditions are only mild at the time. Similarly, someone who is blind, sight impaired or partially sighted will also be automatically classed as disabled. Sight impairment will not cover long or short sightedness that is corrected by glasses or lenses. When a person is not automatically classed as disabled, it is the effect of any condition(s), rather than the condition(s) themselves, that need to be considered. Look at what they cannot do, or can only do with difficulty, rather than what they can do normally. What is ‘substantial’? Substantial is defined as something that is not minor or trivial, but there is, unfortunately, no clearer guidance than that. Consider if the condition prevents your employee from carrying out, repeating or sustaining any activity. You can work out how substantial the impairment is by looking at how your employee can perform an activity taking into account any coping strategies that they have. Recurring conditions Disability can be harder to identify when an individual has a condition that is not present all the time but, instead, has periodic “flare ups” which can be severe. In these situations consider if the impairment had a substantial adverse impact in the past and the likelihood of a substantial adverse impact recurring again within a 12 month period. Where a condition is sporadic, such as epilepsy, it will be treated as a disability when the length of time the impairment lasted for was at least 12 months or the effects are likely to recur for at least 12 months- consider the overall period of time during which the condition is likely to last.
  • 32. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 32 of 39 What if the condition is controlled? When deciding if someone will be classed as disabled consider what they would be like without any treatment or corrective measures. If any continuing treatment would lead to a relapse if it was stopped, then assess them on what they would be like without that treatment. Some conditions may or may not count as a disability depending on how they are controlled. For example, someone with Diabetes that is controlled by medication, such as insulin injections, is likely to be considered disabled whereas someone with Diabetes that is controlled by diet is not.” 21. We move to look at the allegations of disability discrimination. Judge Sara identified these as three different potential claims under s.13, s.15 and s.26 of the Equality Act 2010. Firstly, the claimant contends that because of disability (a protected characteristic) he had been treated less favourably than Exsto would treat someone else who was not disabled. Secondly, the complaint might be interpreted as saying that he was unfavourably treated because of something arising in consequence of the disability. Thirdly, we have to decide whether he was harassed by the respondent's conduct. 22. The fundamental first requirement of any claimant who contends that he was discriminated against on the grounds of his or her disability is that he must produce evidence to show that he was disabled. It will also normally be necessary for him to demonstrate on the balance of probability either that the employer knew that he was disabled or ought reasonably to have known this HR-Genius Case Study: Absence With Depression I have an employee who is absent with depression according to her sick note and has been on leave for 3 weeks. I personally feel she is trying to take advantage of time off work and she has never showed signs of any form of depression whilst at work. Her performance is average at best. What can I do to resolve the situation? You need to be extremely careful when dealing with issues of depression. Just because an individual has not shown any signs of depression at work that you have recognised does not mean that they have not been suffering with it. If her depression counts as a disability and you take action against her as a result of it, you could find yourself facing a claim for disability discrimination. Even if it is not a disability, you could run the risk of an unfair dismissal claim. If your employee returns after a short period of sickness absence then you should carry out a return to work interview with her as you would with any employee who has been off sick. Check that she is recovered enough to return to work now and if there is anything she needs to help her stay back at work. Ask her if she felt that anything in particular caused the depression. If she identifies any issues with work
  • 33. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 33 of 39 then you can look at how she works to see if there are any changes that could resolve your concerns, prevent the depression from recurring and make her more productive and effective. You may find that she is aware that she is not performing well and this could be because of, or the reason for, the depression. If she is signed off work for a further period of depression, you may want to seek her permission to contact her GP for a medical report to see how long this is likely to last and if there are any issues at work that are triggering it. This will let you know whether or not you need to consider making any adjustments to her work. If she is likely to be off sick for the foreseeable future or there is some aspect of her work that is triggering this that cannot be adjusted, then you may have to consider using your capability procedure to see if there is any way her employment can continue. The only reason you are considering taking action about her standard of work now is because of her sickness and that is a very dangerous approach, particularly if you are not tackling any other staff whose performance is below average. This opens you up to the very real accusation that if she had not been diagnosed with depression, you would not have done anything and that puts you at high risk of a claim of disability discrimination. Treat this as an opportunity to discuss with your employee how she is coping with the role and look at introducing regular performance appraisals for all staff. This will allow you to act consistently and improve the performance of all your employees as well as, it is hoped, preventing or reducing future sickness absence. 23. The claimant has the burden of showing that he was disabled within the meaning of the Equality Act. He must present evidence that shows that on the balance of probability he had a disability. The evidence here falls into two categories. The only documents that were in existence before his resignation were three typically brief general practitioners' certificates from Dr Palmer and other GP's, being statement of "fitness for work". That of 10 December and quotes "stress" and signs the claimant off work for two weeks. A later certificate of 21 December last records "stress and low mood" and signed the claimant off work for another month. There is a further certificate dated 11 February 2011 which refers to "stress, anxiety and depression". This is the first time that: the word "depression" had been used of Mr Gardiner. We remind ourselves that stress is not normally regarded as a disability within the meaning of the legislation, unless it is connected with depression. 24. The claimant who contends depression as disability needs to satisfy a Tribunal either that, at the relevant time, he had an Impairment which had already lasted for 12 months, or was likely to last that time. or was likely to last for' the rest of his life. In this case of course Mr Gardiner resigned on 28 February 2011 and it is clearly necessary for him to show to the Tribunal that he was disabled by depression (or in some other way) at the time of his resignation. It is clear that the certificates of "fitness for work" do not contain anything like sufficient detail to even begin to prove that he had had depression for 12 months at that time (because of course he had not), nor
  • 34. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 34 of 39 that it was likely to last for a period of 12 months. Even 11 February 2011 certificate only. signed him off for one months absence. 25. The claimant has also pointed out the medical evidence prepared at the request of the respondent's advisors. At pages 20 and 21 in the Bundle R1 there is a question and answer report from Dr Ruth Palmer of Rowden Surgery dated 24 May 2011. The questions are of course in a fairly standard format designed to elicit whether the employee was suffering from a disability. 26. In the report Dr Palmer is asked at question 7 "Has the effect of such impairment lasted or likely to last for at least 12 months or the rest of the claimant's life?". Her answer is "It may last over 12 months" (our emphasis). In the final question about depression, Dr Palmer records that the claimant was not currently capable of performing his work but was "likely to become so (capable) at some time in the future". Putting together these two answers it is perfectly clear that the medical report does not demonstrate that Mr Gardiner had a disability (depression) which had already lasted 12 months or was likely to last that time or for the rest of his life. In the circumstances the only decision which the Tribunal can reach in this context is to find that this claimant has not got even close to satisfying the burden on him. Accordingly, we find that he was not "disabled" as defined in s.6 of the Equality Act at the relevant time and is not therefore able to pursue the allegation of disability discrimination. Specifically we are satisfied that the claimant did not have a long-term impairment as defined in paragraph 2(1) of part 1 of schedule 1 of the Act. 27. Since the claimant has not shown that he was disabled he cannot succeed with his claim for disability discrimination. However for the sake of completeness we make other findings in respect of the allegations of disability discrimination. Firstly, it is the claimant's credit that he was honest about an issue where others might have been inclined to re-write their story. He acknowledged openly that he had never at any time before he resigned alleged to Exsto or any of its managers that he was disabled or contended that they had breached his rights under what is now the Equality Act. He also accepted that they would not have been aware that he ever thought that he had been the subject of disability discrimination; In the circumstances, the claimant clearly cannot contend that his former employers knew or ought reasonably to have known that he was disabled. That is: not surprising; there are no documents in the Bundle pre-dating the claimant's resignation that indicate that he was contending that he had been discriminated against in that way. 28. There is a further reason why the disability discrimination claim must fail. Mr Gardiner has supplied a huge amount of information about almost every aspect of his case, except in respect of discrimination. The ET1 does allege that the respondent's bullying, illegal deductions from his pay and the poor handling of the grievances caused stress and depression. However, we have found that all these (and the other) contentions were ill-founded. We are satisfied that there was no less favourable treatment or harassment of the claimant that was because of the protected characteristic; was less favourable than any comparator or was because of something arising in consequence of his medical condition.
  • 35. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 35 of 39 29. For all the above reasons therefore, the allegation of disability discrimination is dismissed. 30. We turn to deal with the allegation of race discrimination. Once again we have been assisted by Judge Sara's summary of the issues. Our conclusion is that the respondents did not treat the claimant less favourably than they would have treated a French person, nor did they apply a provision which had a disparate effect on the claimant as an `English speaker. The latter allegation relates to the fact that the grievance interview was conducted by Mr Penelon and the appeal by Mr Torres, the Chief Executive. For both of them French is their first language. Our reasons for this conclusion are as follows. 31. We heard evidence from both managers. It was perfectly evident that they had good skills both in spoken and written English We have heard nothing. That would remotely persuade us that the claimant was put at a disadvantage in the conduct of the grievance or the appeal because he did not speak the same language as the two managers. There are 10 paragraphs justifying why the claimant was not disabled when clearly he is, and this flimsy statement to justify the English speaking ability of the French managers. It is evident that most if not all of the correspondence from the respondents originate from one source: Peninsular Business services. Mr Torres needed an interpreter at the grievance appeal hearing where he agreed with the claimant that the company absence memorandum had been superseded. Despite being excused from proceedings by Judge Sara his witness statement was written by Mr Reynolds of PBS and is wrong. 32. The claimant has made reference to one single state of affairs which he relies on as a comparison. He gave evidence about a French employee of Exsto who was delayed during the flight problems resulting from the Icelandic volcanic ash situation, several months ago. It was clear, however, that the problem and its solution were entirely different from what occurred in Mr Gardiner's case. First of all the grounding of aircraft lasted several days; whereas Mr Gardiner's flight cancellation happened as a result of a one day strike. Secondly, and crucially the other employee apparently requested assistance. That of course is not something that this claimant did. Our conclusion, therefore, is that the contention of race discrimination is also ill founded and will be dismissed. The French employee used as a comparator both by Mr Penelon and the Tribunal was unfair – he was French, worked in France and was subject of
  • 36. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 36 of 39 totally different contractual obligations to the claimant, his flight was delayed by an ash cloud. The circumstances in this case are entirely different. To say the cancellation happened due to a one day strike is correct, however to compare precisely timed industrial action designed to cause the maximum amount of disruption to a cloud of dust is incorrect. The one day strike was timed to coincide with a very busy time for Spanish travellers and followed on from severe disruption to Northern European flights caused by snow. Mr Baxevanidis and Mr Bezard were aware of the weather disruptions having been trapped in Amsterdam for the week arriving in London at 8am on the 3rd of December on that day missing the office Christmas party. 33.Finally we deal with the claims for holiday pay: and unauthorised deductions. We have already made a finding that the claimant as not entitled to be paid for the three days absence in December 2010. He has not offered any evidence that there were any other deductions from his wages. We have not heard any contention that holiday pay was due to him and unpaid. Accordingly, these claims also will be dismissed. The facts presented at the hearing show there were in fact three. The 2nd in relation to an unauthorised absence associated with the industrial accident. The 3rd from the January salary and finally it is entirely unclear from the final pay slip of May 2011 of what the final payment consisted of.
  • 37. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 37 of 39 It is quite clear form this judgment and others that the presenting of a case of such complex issues is beyond the capability of an individual. Peninsular Business Services are aware of this and by their conduct exploit employers, employees and the tribunal alike. What is of great concern to the claimant is despite the excellent views listed in its literature this company has 26,000 customers, all of whom can sack anyone whenever they like, without calling anybody in? a) “HR Genius is integrated into their HR and health & safety departments allowing business owners, directors or senior managers to save time on worrying about staff-related or safety issues and concentrate on what really matters; making their business a success.” b) “The size of HR Genius ensures that we have been able to attract and retain the very best employees from the HR, Health & Safety and Legal Services Industry and create this specialist service for every business.” c) “We can guide you through any issue you may have, whether related to Employment Law or Health & Safety at work.” Extract from the HR-Genius “How To Avoid Being Taken To A Tribunal Start with the basics: meet your statutory and contractual obligations. There is no better way to guarantee a Tribunal claim then by not paying staff properly or on time; so, always pay promptly. Provide a statement of main terms and conditions - with evidence that it has been provided. This can help avoid disputes over contractual terms. Review your recruitment and promotion procedures to make sure that they are fair and transparent to try and avoid any arguments of favouritism or discrimination. Update your equal opportunities policy; review it with your employees. That way everyone knows it is an issue the company takes seriously. Be fair and consistent. Many employers have the tendency to tolerate problems with staff until they suddenly decide that enough is enough and they want to dismiss. Tackle any issues as soon as they arise so that your employees are fully aware of where they stand and the consequences of their actions.
  • 38. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 38 of 39 Follow correct procedures. Any issues that occur should be handled promptly and consistently through an appropriate process. Remember that procedures are as much for improving performance and resolving issues as they are for punishing people. Keep employees informed of any issues that could affect them. Deal with grievances quickly and fully. Employees need to know that the company culture supports the raising of issues and will thoroughly and fairly investigate any issues. Consider the employee’s perspective and make sure you avoid problems that could be resolved through clearer communication. Always: Pay promptly and accurately Issue terms and conditions Tackle issues as they arise Be consistent and reasonable Communicate Never: Withhold payments that are due Ignore performance issues or grievances Bypass procedures Make decisions without investigating Create an uneven playing field” Contrary to the advice of the HR-Genius this is a case where the employer with the support and advice of the HR-Genius did all of the following. Withheld payments that were due Ignored performance issues or grievances Bypassed procedures Made decisions without investigating Created an uneven playing field In the process did not Pay promptly and accurately Issue terms and conditions Tackle issues as they arise Be consistent and reasonable Communicate
  • 39. IN THE BRISTOL ET EAT COURT OF APPEAL 1400500/2011, 1401745/2012, 1401756/2012 1401811/2012, 1401812/2012, 4109312/2012 UKEATPA/1798/11/JOJ, UKEATPA/0386/13/LA A2 2012/2751 A2 2012/2752 Page 39 of 39 How is it possible for an incapacitated employee to retain an ounce “trust and confidence” in an employer who acted in such a manner with the help of the HR-Genius and then when challenged with the advice of the HR- Genius changed their story to suit the requirements of the tribunal? The claimant has been set an impossible task by Peninsular Business Services to overturn their changing of the story to suit, actions which are contrary to their duties to the public and the tribunal. These actions are an abuse of position and the company needs to be held accountable.