Mr C Hornsby v Next Distribution Ltd: 1802496/2021
| Judgment Date | 04 October 2021 |
| Citation | 1802496/2021 |
| Date | 04 October 2021 |
| Published date | 14 October 2021 |
| Court | Employment Tribunal |
| Subject Matter | Breach of Contract |
Case No: 1802496/2021
EMPLOYMENT TRIBUNALS
Claimant Respondent
Mr C Hornsby
v
Next Distribution Limited
Heard at: Leeds Employment Tribunal (via CVP) On: 11 August 2021
Before: Employment Judge Norris sitting alone
Representation:
Claimant: Ms M Martin, Counsel
Respondent: Mr P Sands, Solicitor
RESERVED JUDGMENT
1. The Claimant’s complaint of unfair dismissal is not well-founded and is dismissed.
2. His complaint of wrongful dismissal is well-founded and succeeds.
3. His complaints of failure to make a redundancy payment and deductions from
wages are dismissed on withdrawal.
REASONS
Background
1. The Claimant worked for the Respondent from 8 October 2007 until his dismissal
for alleged gross misconduct on 19 January 2021 following an incident earlier
that month with a colleague, to whom I shall refer as PH. Both men worked as
HGV 1 Drivers. The Respondent is a subsidiary of Next PLC, the well-known
retailer which has a logistics function, including a complex of warehouses in
Elmsall, where the Claimant and PH were based.
2. Between March and April 2021, the Claimant entered ACAS Early Conciliation.
He lodged a claim with the Leeds Employment Tribunal on 12 April 2021
complaining of unfair and wrongful dismissal, failure to pay a redundancy
payment, pay arrears and “other payments”. The Respondent defended the
claim by ET3 submitted on 11 May 2021.
Case progress and conduct of the Hearing
3. It does not appear there was any hearing to case manage the matter but the
parties were sent (and appear to have complied with) standard directions issued
when the notice of claim was sent out. The Claimant served a witness statement
and the Respondent had two witnesses, both of whom also served statements:
Mr Gledhill, Transport Operation Manager, who dismissed the Claimant, and Ms
Case No: 1802496/2021
Nicholas-Pethick, Central Transport Manager, who heard the Claimant’s appeal.
A virtual bundle of just over 400 pages was emailed to me in advance of the
Hearing. Ms Martin had also produced a skeleton argument.
4. The Hearing started at 10.00 on 11 August 2021 by CVP. Mr Gledhill answered
a small number of supplemental questions in chief and was then cross-examined
until the lunch break with a short adjournment mid-morning; Ms Nicholas-Pethick
was cross-examined in the afternoon before a further short break and then the
Claimant gave evidence himself. There had been occasional challenges in
accessing the Hearing and by the end of the evidence it was nearly 17.30. By
agreement I ordered the parties to send (updated) written submissions by 16.00
on 20 August and reserved my decision.
5. There was an issue with the CCTV footage of the incident on 6 January 2021 that
led to the Claimant’s dismissal. At the point we ended the Hearing, it had been
established that the Respondent had disclosed a shortened version and Mr
Sands had been repeatedly unable to access – and hence to show - the full
footage, and I was unable to watch it when he forwarded it to me. Following the
Hearing, I was however able to download and watch it all, and the parties
confirmed when forwarding their submissions that neither wished to reconvene
to put the fuller footage to any of the witnesses. There are also two pieces of
video footage which the Claimant captured using his mobile phone. I have had
regard to each of them, and to all the written and oral evidence before me, in
making this decision.
6. I record that Ms Martin on behalf of the Claimant formally confirmed he pursues
only unfair and wrongful dismissal complaints; the complaints of failure to make
a redundancy payment and/or deductions from wages are accordingly dismissed
on withdrawal.
Submissions/The Law
7. As I have noted above, both parties were invited to and did provide submissions
in writing and while I do not replicate them in their entirety here, I have read them
and refer to them below on particularly salient points. In line with the Court of
Appeal’s decision in DPP Law Limited v Greenberg1 I similarly do not identify
every piece of evidence which I have taken into account in reaching my
conclusions.
8. It appears that the parties agree the initial burden of proof is with the Respondent
to show the reason or, if more than one, the principal reason, for dismissal. Such
reason must have been “potentially fair” within the meaning of sections 98(1)(a)
and 98(2) Employment Rights Act 1996 (ERA). Conduct is one such potentially
fair reason.
9. If the Tribunal is satisfied that the Respondent has shown a potentially fair
reason, it will proceed to consider the reasonableness of the decision to dismiss
applying the test (at section 98(4) ERA):
1 [2021] EWCA Civ 672
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