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 |
Case Number: 2501804/2021
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 1 of 37
Case Number: 2501804/2021 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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Case Number: 2501804/2021 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 3 of 37
Case Number: 2501804/2021 submitted time sheets on behalf of the team. Indeed, the Claimant understood and believed that she had instructed Mr Potts to do this. Once Mr Potts completed the necessary paperwork on behalf of the team, it was submitted, via Jane Ker,
to management for payment approval.
9. The team had been submitting time sheets for snow & ice work on that basis since they first started doing that work in 2014. When, the Claimant agreed to take over the task, he was shown and followed the same practice as Mr Potts because that was, as he genuinely understood matters, the practice.
Aborted call outs 10. Sometimes a call out would be aborted or cancelled, by which to say each member of the team, having been called out, would subsequently receive a telephone call to say that, conditions having been reassessed, he was no longer needed to undertake the work. This was a central issue in these proceedings and it formed the background to a disciplinary charge against the Claimant during his employment, which along with another disciplinary charge, resulted in his dismissal.
13 – 14 February 2021 11. On the evening of 13 February 2021, the Claimant, Lez Mielnik and Mick Wingfield were instructed by Simon Bryson, to come in the following morning as it looked like the snow & ice team would be needed. That team had been out clearing ice and snow all week and the forecast had been for icy conditions again on 14 February 2021. Therefore, on the evening of 13 February, in anticipation of the need to clear paths and roads the following morning, they were ‘called out’ to attend the prison at 04.30 on 14 February.
12. The Claimant rose early on the 14th and left home to go to the prison hoping to arrive at about 04.30. On his way, he received a call from the “Comms Operator” (Maggie Aleksandrowicz) to say that the call out had been cancelled. The Claimant did not communicate this to the other two, assuming that someone from Comms would contact them. He returned home for a while before returning to prison later that morning to start his normal duties at 07.30am.
13. On 14 February 2021, at 13.43, the Claimant emailed Jane Ker attaching a time sheet for the 08 to 14 February 2021 [page 143]. As had been his practice and that of Mr Potts before him, he also completed and submitted time sheets for Mr Wingfield and Mr Mielnik [pages 142 and 144]. The Claimant had filled those forms in incorrectly (in a minor way), in that he entered the number of ‘hours’ in the ‘days’ column, whereas they should have been entered in the ‘hours decimal’ column. A corrected version of the Claimant’s time sheet is at page 138. It had been corrected by Jane Ker, without question. In the timesheets, the Claimant had claimed for 4 hours’ work snow & ice work on 14 February 2021. The time sheets were then processed, approved and paid without question.
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Case Number: 2501804/2021
14. This was not the first time that the Claimant had claimed for and had been paid for an aborted call in circumstances where he had been called out, only for the call to be cancelled before he arrived at work. Indeed, he had in the past claimed for and had been paid for call outs which had been cancelled before he left his home in the morning. The snow & ice procedure document says nothing about entitlement to the minimum 4 hours’...
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