Mr B Sobnack v Loughborough University: 2601886/2020
| Judgment Date | 09 March 2021 |
| Citation | 2601886/2020 |
| Published date | 18 March 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No 2601886/2020 (V)
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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
Case No 2601886/2020 (V)
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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.
Case No 2601886/2020 (V)
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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,
18.2.1. 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?
18.3. 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?
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