Mr L Capper v The Place Young People’s Company Ltd: 2603154/2020
| Judgment Date | 13 September 2021 |
| Date | 13 September 2021 |
| Published date | 29 September 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: V 2603154/2020
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EMPLOYMENT TRIBUNALS
Claimant: Mr L Capper
Respondent: The Place Young People’s Company Limited
Heard at: By Cloud Video Platform On: 29th March 30th March , 31 March 2021 and
16 June 2021
Before: Employment Judge Broughton (sitting alone)
Appearances
For the Claimant: In Person
For the Respondent: Mr Fennell – solicitor
RESERVED DECISION
1) The claimant’s claim of unfair dismissal is well founded and succeeds.
2) A reduction of 100% is applied to the compensatory award under section 123 (1) ERA
3) A reduction of 100% is applied to the basic award under section 122(2) ERA
4) No compensation is awarded to the claimant.
5) The complaints of unlawful deduction of wages are not well founded and are dismissed
REASONS
Background and Issues
1. The claim was presented to the employment Tribunal on 21 August 2020. The effective
date of termination of the claimant’s employment was 15 May 2020. There was a period of
Acas early conciliation from 14 July 2020 to 29 July 2020.
2. The claims are :
• Unfair dismissal under Sections 94 and 98 of the Employment Rights Act 1996
(“ERA”)
• Unlawful deduction from wages: section 13 ERA
The claim – summary
Case Number: V 2603154/2020
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3. By way of a brief background to the claims; the claimant was employed by the respondent
to manage a children’s residential home called High Leys Farm (Home). There was an
incident involving Child A (see anonymisation order below). The claimant was dismissed
for failing to comply with safeguarding procedures including completing the necessary
paperwork and reporting the incident to an appropriate person or body.
4. The claimant complains about the fairness of the process however, the crux of his claim is
that he did not consider the incident to be sufficiently serious to report and he delegated
the task of preparing the necessary paperwork to his deputy.
The issues
5. The issues to be determined in this case are as follows;
Unfair dismissal
(i) What was the principal reason for dismissal and was it a potentially fair one in
accordance with sections 98(1) and (2) of the Employment Rights Act 1996
(“ERA”): The Respondent asserts that it was conduct.
(ii) If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and,
in particular, did the Respondent in all respects act within the so-called ‘band of
reasonable responses’?
Remedy for unfair dismissal
(iii) If the Claimant was unfairly dismissed and the remedy is compensation:
a. if the dismissal was procedurally unfair, what adjustment, if any,
should be made to any compensatory award to reflect the possibility
that the Claimant would still have been dismissed had a fair and
reasonable procedure been followed. See: Polkey v AE Dayton
Services Ltd [1987] UKHL 8;
b. would it be just and equitable to reduce the amount of the Claimant’s
basic award because of any blameworthy or culpable conduct before
the dismissal, pursuant to ERA section 122(2); and if so to what
extent?
c. did the Claimant, by blameworthy or culpable actions, cause or
contribute to dismissal to any extent; and if so, by what proportion, if at
all, would it be just and equitable to reduce the amount of any
compensatory award, pursuant to ERA section 123(6)
Unauthorised deductions
(iv) Did the Respondent make unauthorised deductions from the Claimant’s wages in
accordance with ERA section 13 and if so how much? There are two separate
claims; a claim for a bonus payment of £800 and a claim for unpaid wages;
Case Number: V 2603154/2020
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Claim for bonus payment: £800
(v) Did the Respondent make unauthorised deductions from the Claimant’s wages
pursuant to section 13 of the Employment Rights Act 1996 (ERA) by not paying
him a lump sum in lieu of the remaining annual salary increment awarded
following a OFSTED rating of Good and if so how much remained unpaid?
Claim for unpaid wages 14 Hours: £225
(vi) Did the Respondent make unauthorised deductions from the Claimant’s wages
pursuant to section 13 by not paying him £225 for the hours he worked in excess
of 40 hours per week in November 2020 ? The practice is he alleges, that the
hours worked in excess of 40 hours are paid or can be taken back as time off
(TOIL).
Preliminary Matters
6. There were a number of preliminary matters the Tribunal was required to address before
and during the course of the hearing.
Amendment Application
7. The claimant raised with the Tribunal when discussing the claims at the commencement of
the hearing, that he had wanted to include a claim for discrimination but that he had been
informed by Employment Judge Hutchinson at a preliminary hearing on 12 January 2021
that he could not do so. On reading the record of that telephone preliminary hearing there
was no mention of this being raised however on enquiring further about the basis of any
potential claim, the claimant informed the Tribunal that another member of staff, his former
deputy manager, had been given a second disciplinary appeal hearing (denied by the
respondent) . The claimant did not allege that this treatment was based on any protected
characteristic or otherwise identify any basis for a discrimination claim. His complaint
appeared to be of inconsistent treatment relevant to issues of fairness in respect of the
unfair dismissal claim. When this was discussed further with the claimant, he did not
proceed with an amendment application.
Evidence
Documents
8. The Tribunal was provided with a bundle of documents initially numbering 434. Additional
documents were added to the bundle during the course of the hearing.
Witnesses
9. The claimant produced a witness statement and was cross-examined by the respondent.
He had also produced five further witness statements for; Alexander Astill, the Designated
Responsible Individual (RI), Katherine Taylor, Jacqueline Smith, Emma Lazenby, and
Laura Cox; all former colleagues.
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