Mr B Sobnack v Loughborough University: 2601886/2020

JurisdictionEngland & Wales
Judgment Date09 March 2021
Citation2601886/2020
Published date18 March 2021
CourtEmployment Tribunal
Case No 2601886/2020 (V) EMPLOYMENT TRIBUNALS Claimant Mr B Sobnack Respondent: Loughborough University Heard at: Leicester Hearing Centre, 5a New Walk, Leicester, LE1 6TE By cloud video platform On: 8, 9, 10, 11 February 2021 Before: Employment Judge Adkinson sitting alone Appearances For the claimant: Mr D Flood, Counsel For the respondent: Ms E Hodgetts, Counsel This has been a remote which has been not objected to by the parties. The form of remote hearing was V: video whether partly (someone physically in a hearing centre) or fully (all remote). A face to face hearing was not held it was not practicable and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of about 320 pages, the contents of which I have recorded. The order made is described below. JUDGMENT After hearing the evidence and submissions of each party, the Tribunal concludes that: 1. The respondent employed the claimant in his role as warden of Harry French Halls of Residence; 2. The respondent unfairly dismissed the claimant; 3. The claimant’s employment would have ended on 31 August 2021 and therefore any compensation must be limited to that date; 4. The claimant’s conduct contributed to his dismissal. The basic award and compensatory award should therefore be reduced by 25%; 5. Neither re-engagement or re-instatement are appropriate in this case and so the Tribunal orders neither; 6. The respondent must pay to the claimant the following sums which take account of any reductions under the rule in Polkey or for the claimant’s contributory conduct: 6.1. a basic award of £4,129.38, and Page 1 of 41 Case No 2601886/2020 (V) 6.2. a compensatory award of £10,299.84. REASONS Background 1. The Claimant, Mr Sobnack, is employed by the Respondent, Loughborough University (“the University”), as a university teacher in physics. There are no issues in this case that relate to that employment. 2. Between 1 December 2002 and 27 March 2020, Mr Sobnack was also the warden of Harry French Hall of Residence, one of the Halls of Residence at Loughborough University. He says that this was pursuant to a contract of employment (what I have called “the contract of wardenship”) that was separate and distinct from that of his role as a university teacher and that he was unfairly dismissed from it. He seeks compensation and he also seeks his reinstatement or reengagement in the role of warden. 3. The Respondent does not dispute it is possible for him to have two contracts of employment with the University. However, they say that is role of warden was not that of an employer/employee relationship. They say even if they were wrong about that he was fairly dismissed for some other substantial reason. If remedy is appropriate, then they resist his reinstatement or reengagement. The University also raised issues about the calculation of losses and in particular the calculation of the cap on an award for unfair dismissal. The hearing 4. Mr Sobnack was represented by Mr Flood, Counsel, and the University by Ms Hodgetts, Counsel. I am very grateful to the help that they provided to the Tribunal and the co-operation that they clearly had with each other beforehand to narrow the issues in the case. 5. I heard oral evidence from Mr Sobnack, Mr I Usen, a sub-warden from 2016 in Harry French Hall and also from Mrs D Vignali who was the Sales and Service Provider at Unite, who are the organisation who manage the hall on behalf of the University. 6. On the University’s behalf I heard evidence from Dr M Alonso, who is Director of Student Services, the Associate Chief Operating Officer and who dismissed Mr Sobnack from his role as warden. In addition, I heard oral evidence from Professor R Thomson, the pro-Vice Chancellor of Teaching, who reviewed Dr Alonso’s decision to terminate Mr Sobnack’s role as warden. 7. I have taken into account each witnesses oral evidence. I have also taken into account the written evidence of Mr H Johnson. Originally, he was going to be a witness for Mr Sobnack but he decided not to call him or his statement as evidence. However, University instead tendered his statement as evidence. There was no objection to that happening and therefore I allowed it in. Page 2 of 41 Case No 2601886/2020 (V) 8. At the close of the case, each party provided written submissions and also made oral closing submissions. I have taken those into account in the decision that I have reached. 9. With the agreement between the parties, I have dealt with both liability and where appropriate remedy. 10. The hearing itself proceeded by way of HMCTS’s Cloud Video Platform on 8, 9, 10 and 11 February. 11. During the course of the hearing there were some minor technical difficulties but neither party suggested they had any impact on the fairness of the proceedings and for my own part I am not aware or was able to perceive any unfairness to either party caused by either the use of CVP or by the technical difficulties. 12. During the course of the hearing at the end of every hour we took a break of approximately five minutes in line with Health and Safety Executive guidelines on the use of computer monitors. 13. There was a bundle of approximately 255 pages and I have considered those documents to which I have been referred. 14. The Claimant prepared a remedy bundle of approximately 108 pages and again I have considered those to which I have been referred. 15. The University submitted a supplementary bundle of 9 pages. No objection was taken to that being put before me. I have considered those documents to which I have been referred. 16. In view of the number of issues in the case I decided to reserve my decision. This is that decision. Issues 17. Counsel for both parties had cooperated and agreed between them a list of issues for me to resolve and I agree that that represented the issues that I have to engage in having now heard the evidence in the proceedings. 18. In summary the issues are as follows: 18.1. Was the contract of wardenship a contract of employment? 18.2. If yes, 18.3. 18.2.1. has the Respondent established a potentially fair reason for dismissal namely a breakdown in trust and confidence amounting to some other substantial reason? 18.2.2. If yes, was the dismissal fair or unfair in accordance with the substantial equity and merits of the case taking into account all the circumstances and in particular the respondent’s size and administrative resources? If I decide that the Claimant were unfairly dismissed the following further issues arise: 18.3.1. Is it just to order the reinstatement of the Claimant? Page 3 of 41 Case No 2601886/2020 (V) 18.3.2. If not, is it just to order his reengagement? 18.3.3. What compensatory award is the Claimant entitled to? 18.3.4. Should I make any reduction to the compensatory award under the principle set out in the rule in Polkey? 18.3.5. Was any dismissal caused or contributed to by the claimant’s actions? If so by what proportion would it be just and equitable to reduce the amount of the basic or compensatory award? 18.3.6. 18.3.6.1. Does the ACAS Code of Practice on disciplinary procedures apply? 18.3.6.2. If yes has the Respondent failed to comply with it unreasonably and if so, should I increase the award on the grounds it is just and equitable to do so and if so by what amount? 18.3.7. For the purposes of the statutory cap on any compensatory award, does a week’s pay include any fringe benefits? 19. The parties agree that, subject to any reductions and liability, the basic award would be £5,505.84. 20. There is also no argument that the Claimant has failed to mitigate his loss. That concession was, in my view, quite properly and sensibly made on the facts of this case. Findings of fact 21. I make the following findings of fact on the balance of probabilities. The witnesses 22. I begin by making some observations about what I made of the witnesses, because I have taken this into account when evaluating their evidence. 23. I begin with the University’s witnesses. I am quite satisfied that both Dr Alonso and Professor Thomson did their best to tell me what they honestly believe to be the truth. My primary reason for this conclusion is that their evidence significantly undermined the University’s case that the dismissal was fair and that he was not an employee and that they gave such evidence freely and without attempting to play it down. Their evidence also accorded with the documents available. They made appropriate concessions, in particular about relying on human resources (“HR”) and in Dr Alonso’s case, about how clearly and quickly he lost trust in Mr Sobnack. 24. I have a different view about Mr Sobnack and believe he was consciously trying to paint a favourable picture of matters rather than give straight answers to assist the Tribunal to work out what had happened. Page 4 of 41 Case No 2601886/2020 (V) 25. The University sought to make a number of points to undermine his credibility. For me, the following things were significant to undermine his believability in my view. 25.1. The first is that after he started these Employment Tribunal proceedings, when he was no longer the warden of Harry French Hall, he decided to send an e-mail on 25 June 2020 making serious allegations about sub-wardens who had been involved in complaints against him. There was absolutely no point in sending that. He said it was to deal with allegations he had heard on “the grapevine”. This makes no sense to me. He was not being investigated at the time; he was not being subjected to any sort of disciplinary proceedings; the Employment Tribunal proceedings were of course already presented at that point. In my view he could not provide any satisfactory explanation for suddenly, unexpectedly and without prompting sending this email to the University with the allegations in it. The e-mail seems to do nothing other than trying to tarnish the names of potential complainants or witnesses. I consider that...

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