Mr J Ingle-Smith v Supaman Ltd T/a O Brown: 2207427/2021
Jurisdiction | England & Wales |
Judgment Date | 07 December 2022 |
Date | 07 December 2022 |
Published date | 21 December 2022 |
Court | Employment Tribunal |
Citation | 2207427/2021 |
Case Number: 2207427/2021
EMPLOYMENT TRIBUNALS Claimant
Respondent
Mr J Ingle-Smith
V
Supaman Limited t/a Oliver Brown
Heard at: London Central
On
8 and 9 November 2022
Before: Employment Judge Joffe
Representation
For the Claimant:
For the Respondent:
In person
Mr Chehal, employment consultant
RESERVED JUDGMENT 1. The respondent constructively unfairly dismissed the claimant, contrary to Sections 94 and 98 Employment Rights Act 1996.
2. There is a 25% chance the claimant would have been fairly dismissed had he not resigned.
3. The claimant’s contribution to his dismissal was such that it is just and equitable to reduce both the compensatory and basic awards by 75%.
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Case Number: 2207427/2021
REASONS
Claims and issues
1. The issues were discussed and agreed at a case management preliminary hearing before Employment Judge Connolly on 3 June 2022 and were as follows:
Unfair dismissal 1.1 Was the claimant dismissed?
1.2 Did the respondent do the following things:
1.2.1 Did Mr Kristian Robson attempt to physically assault the claimant?
1.2.2 Did Mr Kristian Robson threaten the claimant by saying:
1.2.2.1 “I will fucking shoot you”; and 1.2.2.2 “I will beat the shit out of you”?
1.3 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:
1.3.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and 1.3.2 whether it had reasonable and proper cause for doing so.
1.4 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.
1.5 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.
1.6 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.
1.7 what was the reason or principal reason for dismissal?
1.8 Was it a potentially fair reason?
1.9 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?
2. Remedy for unfair dismissal 2.1 If there is a compensatory award, how much should it be? The Tribunal will decide:
2.1.1 What financial losses has the dismissal caused the claimant?
2.1.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?
2.1.3 If not, for what period of loss should the claimant be compensated?
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Case Number: 2207427/2021
2.1.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?
2.1.5 If so, should the claimant’s compensation be reduced? By how much?
2.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?
2.1.7 Did the claimant unreasonably fail to comply with it by failing to utilise the respondent’s grievance process before he resigned?
2.1.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?
2.1.9 If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?
2.1.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?
2.1.11 Does the statutory cap of fifty-two weeks’ pay or £89,493 apply?
2.2 What basic award is payable to the claimant, if any?
2.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?
Findings of fact 3. I was provided with a bundle running to 122 pages. The claimant gave evidence on his own behalf and produced a witness statement from Mr A Courtney, formerly the store manager of the respondent’s Jermyn Street store. Mr Courtney has since moved to Spain and the claimant said that is why he was not available to give evidence.
4. For the respondent, I heard from Mr K Robson, the owner and managing director of the respondent, Mr R Dymock-Maunsell, a management consultant who carries out consultancy work for the respondent, Mr H Stanley, a restaurateur and client of the respondent, Mr R Fuller, retail general manager for the respondent, and Mr S Bhattarai, director of operations at a restaurant called Isabel Mayfair.
5. I was also provided with a section of CCTV footage from Isabel Mayfair on the evening of 3 November 2021 and I watched that footage a number of times.
6. The claimant worked for the respondent as an assistant manager from 1 June 2018. The respondent is a tailoring business which trades under the name of Oliver Brown, with a shop in Lower Sloane Street and one in Jermyn Street.
7. The events with which I am concerned all took place on 3 November 2021;
this was the date of the launch party for the new Jermyn Street store. The party was held in the evening at the store and afterwards Mr Robson had 3
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arranged a private dinner at Isabel Mayfair for business associates and friends. Some models and social media influencers had also been invited, and some of these ‘VIPs’ were paid to attend.
8. I heard some evidence about the events earlier on that day which did not seem to me to be material to the issues I had to decide save to say that the claimant had had a busy day and only a short break and not much time to eat anything.
9. Staff including the claimant were involved in setting up the party and serving drinks.
10. Mr Fuller said that he told staff that Mr Robson did not want them to drink and the claimant replied: ‘Fuck that, I am fucking drinking’. He said that the claimant appointed himself chief barman and was helping himself to drinks as the evening went on. He said that the claimant was very loud and was serving drinks to customers he liked.
11. There was an email dated 16 November 2021 in the bundle from a Ms Goodley who did PR for the respondent. She described the claimant as having been ‘drunk, loud and obnoxious’ at the launch party.
12. The claimant said that he only drank a quarter of a Negroni to test the mixture and otherwise did not drink. He said that he was very busy serving drinks and was not inebriated. He said that Mr Dymock-Maunsell told him to stop serving Mr Robson as the latter was visibly inebriated and he did not want him to embarrass himself. Mr Dymock-Maunsell denied that this conversation took place and Mr Robson denied that he was inebriated. Mr Dymock-Maunsell said that Mr Robson was hosting and speaking with the influencers and was nervous and on edge.
13. The launch party concluded about 8:45 and the staff were tidying up and restoring the shop. The claimant said that he was chatting to a customer named Henry who had stayed on. He had a good rapport with Henry and he said Henry said that Mr Robson was hosting an after party and invited the claimant to join him. The claimant said he initially declined the offer as he had had a long day with only a short break but that Henry was insistent so he told Mr Courtney that he was going to accompany Henry to Isabel Mayfair to keep him happy.
14. The claimant said that when he and Henry arrived at the restaurant, they saw Mr Stanley outside having a cigarette. He said that Mr Stanley warmly greeted the claimant and Henry and asked if they would like to join him inside.
15. Mr Stanley in his witness statement said that he was outside having a cigarette but did not know who Henry was and that he noticed the claimant 4
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tailgating him into the restaurant when he returned inside. In oral evidence he accepted that he did have a conversation with the claimant outside the restaurant but could not remember much about it.
16. The claimant said that Mr Stanley escorted the claimant and Henry to a table where the claimant sat down with Henry and Mr Stanley. Mr Robson was at the other end of the table with his wife and Mr Dymock-Maunsell and the claimant said that Mr Robson did not notice the claimant at first. He said that Mr Stanley passed him a plate of food and he gratefully ate from the plate. Mr Stanley denied providing the claimant with a plate of food. The witnesses said that there were sharing plates of food on the table and that guests had individual plates to help themselves from the sharing plates.
17. A short time after he arrived, the claimant said he made eye contact with Mr Robson who shouted over: ‘What are you doing here?’ and he replied that Henry had invited him. He said that Mr Robson replied: ‘Get downstairs immediately’ and that he said: ‘Please don’t shout at me like that in front of the guests’.
18. The claimant said that Mr Robson then became enraged and came towards him with what he perceived to be threatening body language. He said that Mr Dymock-Maunsell followed Mr Robson around to the claimant’s side of the table and stood beside him. Mr Robson stood opposite the claimant and shouted: ‘If you do not go downstairs now I will beat the shit out of you.’ The claimant said: ‘I would like to see you try’.
19. The claimant said that Mr Robson then lunged at him attempting to punch him and he managed to swerve backwards to avoid being hit. He said that Mr Dymock-Maunsell managed to jump in between them and that Mr Robson was continuing to try to punch him and shouting: ‘I will beat the shit out of you, you little cunt’ and ‘I will fucking shoot you’. He said that at this point Mr Bhattarai and security staff became involved and suggested it would be best if the claimant left.
20. The claimant said that Mr Bhattarai then apologised to him and told him he was welcome back at any other time.
21. Mr Robson’s account is that he was in the bathroom when the claimant arrived. He got back to his table and noticed the claimant was there and helping himself to food...
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