Mr J W Cotterill v Sodexo Ltd: 2501804/2021
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 2022 |
| Date | 25 April 2022 |
| Published date | 08 June 2022 |
| Court | Employment Tribunal |
| Citation | 2501804/2021 |
| Subject Matter | Unfair Dismissal |
Case Number: 2501804/2021
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EMPLOYMENT TRIBUNALS
Claimant: Mr J W Cotterill
Respondent: Sodexo Ltd
RESERVED JUDGMENT
Heard at: Newcastle Tribunal On: 01 April 2022
Before: Employment Judge Sweeney
Representation:
For the claimant: Mr M Winthrop, solicitor
For the respondent: Mr T Wilkinson, counsel
The Judgment of the Tribunal is as follows:
1. The Claimant’s claim of unfair dismissal is well founded and succeeds.
2. The Claimant’s claim of wrongful dismissal is well founded and succeeds.
3. The compensatory award is reduced by 20% to reflect the fact that the
Claimant would have been fairly dismissed
4. The Claimant contributed towards his own dismissal and the basic and
compensatory awards are reduced by 10%.
REASONS
The Claimant’s claims
1. By a Claim Form presented on 25 November 2021, the Claimant brought claims
of unfair dismissal and wrongful dismissal arising out of the summary termination
of his employment on 06 July 2021. The Respondent resisted both claims. It
maintained that it dismissed the Claimant for a reason related to conduct, namely
fraudulently claiming overtime and theft of some scaffolding poles and that it
acted reasonably in treating the reason as a sufficient reason for dismissal. The
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Respondent further contended that, in the event that the dismissal might be found
to be unfair due to procedural or other failings, the Claimant would have been
dismissed in any event (relying on what is generally referred to as the ‘Polkey’
point). It also contended that the Claimant’s actions were culpable, blameworthy
and entirely causative of his dismissal. On the wrongful dismissal claim, it
maintained that the Claimant had, by his conduct, repudiated the contract of
employment and that it was entitled to terminate his contract without notice.
The Hearing
2. The claimant was represented at the final hearing by Max Winthrop, solicitor and
the Respondent by Tim Wilkinson of counsel. The parties had prepared an
agreed bundle of 236 pages. The issues are contained in the annex to these
reasons.
3. The Respondent called two witnesses:
(1) Mr Richard Martin, Deputy Head of Residence at HMP Northumberland (Mr
Martin dismissed the Claimant);
(2) Ms Ingrid Thompson, Head of Security and Safety at HMP Northumberland
(Ms Thompson heard the Claimant’s appeal against dismissal)
4. The Claimant gave evidence on his own behalf.
Findings of fact
5. The Claimant was employed by the Respondent as an Operational Support
Officer (‘OSO’). His initial employment, which commenced in 2004, had been with
Her Majesty’s Prison and Probation Service (‘HMPPS’). His employment
transferred to the Respondent in 2013 under the provisions of the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’). The
Claimant was based at HMP Northumberland (‘the prison’). He worked within
‘Facilities Management’ or ‘FM’, specifically within the control room.
Snow & ice work
6. The general duties of his role are as set out on pages 48-49 of the bundle. In
addition to his normal duties, from about 2014 the Claimant and other OSOs also
undertook what is referred to as ‘snow and ice’ work. This involved additional,
voluntary, paid work undertaken during ‘the winter months’ (which in 2020/2021
were 02 November 2020 to 22 March 2021). The work consisted of two teams
of workers who would, when necessary, arrive at the prison early in the morning,
to apply salt to pathways, roads and parking areas in and around the area of the
prison and clear the accessible areas of snow and ice. During the winter months,
each employee who had agreed to undertake the work, was placed on a rota,
which determined when they would be on call to carry out this work.
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7. The general practice was that the Orderly Officer would assess the weather
conditions at around 04.30am. If conditions were such that snow & ice work was
required, someone would then call those on the rota, to allow enough time for
them to reach the prison before the main staff arrived. The employees would then
make their way to the prison and clear the areas. However, if the weather was
consistently bad and if more bad weather was forecast, rather than leave it to
04.30 am to make the call, the Orderly Officer would tell the snow & ice team in
the evening to come in the following day at 04.30am. Thus, in consistently bad
and forecast bad weather, the call-out instruction was often given the night
before. The Claimant was in a ‘snow and ice’ team of three, along with Lez Mielnik
and Mick Wingfield.
Payment for snow & ice work
8. When on the rota, the team remained ‘on call’ for which they were paid an on-call
allowance of £105 a week. It was common ground in these proceedings that this
allowance was paid for the inconvenience of being on call. In addition to this
allowance, if an employee was in fact called out, he was paid an additional
payment, namely a minimum payment of 4 hours’ work at the rate of time and a
half (equivalent to 6 hours at the normal rate). That was the case even if snow &
ice work was performed only for a few minutes. Indeed, as will be seen, this was
also the case if no work was done at all.
9. Each year, the teams were issued with a document called ‘Snow & Ice
Procedures’. There is a copy of such a procedure in the bundle at pages 95-100.
Nowhere in this, or any other, document does it set out what the rate of pay is or
in what circumstances employees are entitled to be paid the minimum 4 hours
payment.
Time sheets
10. The Respondent required completed time sheets to be submitted by employees,
which were then passed on to a manager for approval and payment. In practice,
they were submitted to Jane Ker. They were then sent to Jim Lillico (or his
predecessor) who would then authorise the timesheets and approve the claims
for payment (page 131).
8. Lee Potts was an OSO and colleague of the Claimant. He too once undertook
snow and ice work. There was a time when Mr Potts completed and organised
the submission of the time sheets on behalf of the snow and ice team of which
he was part, which included the Claimant. This had been the practice of Mr Potts
for some years - from about 2014 until about late 2019 or early 2020. When he
left the snow and ice team, the Claimant took on the responsibility of completing
and submitting time sheets for him and the team. He had been shown how to
complete the sheets by Mr Potts. For at least part of period when Mr Potts had
been submitting the time sheets, Julie Patrick had been Head of FM. As far as
the Claimant understood things, she was fully aware that Mr Potts completed and
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