Mr S Glover v McColl's Travel Ltd: 4104410/2016

E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4104410/16 5 Held in Glasgow on 13, 14, 15, 16 February 2017 & 17 February 2017 (In Chambers) Employment Judge: P Wallington QC Members: Mr I Poad 10 Mr A Ross Mr Steven Glover Claimant 15 Represented by Mr L Anderson - Solicitor 20 McColl's Travel Limited Respondent Represented by Mr S Connolly - Solicitor 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous Judgment of the Tribunal is as follows:- 30 (1) The claimant`s claim of detriment having made protected disclosures is outwith the jurisdiction of the Tribunal by reason that it is time barred. (2) The claimant`s claim of automatic unfair dismissal pursuant to Section 103A of the Employment Rights Act 1996 is not well founded and is dismissed. 35 (3) The claimant was unfairly dismissed by the respondent. The Tribunal awards the claimant a basic award of £5,427.00 (Five Thousand, Four Hundred and Twenty Seven Pounds) and a compensatory award of £1,364.27 (One Thousand, Three Hundred and Sixty Four Pounds, Twenty 40 Seven Pence), making a total award of £6,791.27 (Six Thousand, Seven S/4104410/16 Page 2 Hundred and Ninety One Pounds, Twenty Seven Pence). The Recoupment Regulations do not apply to this award. (4) The claimant`s claim for an uplift in the compensatory award for unfair dismissal pursuant to Section 207A of the Trade Union & Labour Relations 5 (Consolidation) Act 1992 is not well founded and is dismissed. (5) The claimant`s claim for a redundancy payment is not well founded and is dismissed. 10 (6) Pursuant to Rules 75(1)(b) and 76(4) of the Employment Tribunals Rules of Procedure 2013, the Tribunal awards the claimant expenses in the sum of £1,200.00 (One Thousand, Two Hundred Pounds) being fees incurred by the claimant in presenting and prosecuting these proceedings. 15 REASONS 1. In this case the claimant, Mr Steven Glover, claims against his former employers McColl`s Travel Ltd in respect of his dismissal, with effect from 20 13 May 2016, from his employment by the respondent as a Bus Driver. 2. The primary claim made by the claimant is of automatic unfair dismissal pursuant to Section 103A of the Employment Rights Act 1996, which applies where the reason or principal reason for the dismissal was that the 25 claimant made a protected disclosure (commonly referred to as a whistleblowing disclosure). In the alternative, the claimant claims that he was unfairly dismissed contrary to Sections 94 and 98 of the Employment Rights Act 1996. In the further alternative, the claimant claims a statutory redundancy payment. An additional claim is made pursuant to Section 48 of 30 the Employment Rights Act 1996 in respect of having been subjected to detriment by reason of having made protected disclosures. In addition to the foregoing claims, the claimant made a claim for an uplift of the S/4104410/16 Page 3 compensatory award for unfair dismissal (whether under Section 103A or Section 98 of the 1996 Act) under Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, on the ground that the respondent had unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures in respect of his 5 dismissal. All of these claims were put into dispute by the respondent in its response. 3. At the commencement of the Hearing of this claim, the Tribunal drew the attention of the claimant`s representative to the lack of specification in 10 relation to the claims based on protected disclosures, and requested the that he provide further specification of the disclosures relied on and the basis upon which they were asserted to be protected, and of the detriments relied on. These particulars were provided, but it was apparent that the particulars raised allegations of detriments other than those pleaded in 15 paragraph 43 of the paper apart to the ET1, which referred to the issuing to the claimant on 3 March 2016 of a letter giving notice of termination of his employment and a separate letter offering re-engagement on different and inferior terms in an enclosed contract, and the dismissal itself. 20 4. We took the view that the references to further alleged detriments required to be treated as an application to amend the original particulars of the claim. The claimant`s representative submitted that permission to amend should be granted, but this was opposed by the respondent`s representative. We considered, applying the well known criteria for permission to amend set out 25 in the case of Selkent Bus Co Ltd v Moore [1996] ICR 836, that the application for permission to amend should be refused, because the balance of prejudice or hardship if the amendment was permitted was greater than if it was refused. We took into account in particular the failure of the claimant to seek to advance the additional detriments now relied on 30 until after the commencement of the hearing, and then only in the context of having been asked for specification, not additions to, his case, and that there would be particular prejudice to the respondent in having to deal with S/4104410/16 Page 4 additional detriments first advised as claims after its principal witness, Mr William McColl, had commenced giving evidence, having regard to the fact that the respondent`s case had been prepared, and its witnesses precognosed, on the footing that the case to be met was that set out in the paper apart to the ET1 only. 5 5. We add the observation at this point that it was accepted by the claimant`s representative that the effect of Section 47B(2) of the Employment Rights Act 1996 is that dismissal cannot be a detriment for the purposes of a claim under Section 48, and that therefore the only detriment pleaded was the 10 issuing to the claimant of letters giving notice of dismissal and of an offer of a new contract, on 3 March 2016. 6. The Tribunal proceeded to hear evidence on oath from Mr William McColl and Mrs Stephanie McColl on behalf of the respondent, and from the 15 claimant in person. The Tribunal was also referred extensively to a joint bundle of productions, running to nearly 300 pages, half of which constituted pay records of the claimant`s salary during his employment by the respondent. 20 7. We considered that whilst each of the witnesses was honestly seeking to give truthful evidence to the best of his or her recollection, none of the witnesses was as clear or persuasive as we would have wished. Neither Mr nor Mrs McColl had very good recollection of some of the details of the case, whilst the claimant presented as having a particularly inflexible 25 attitude to his situation and as often being unrealistic in his perception of the respondent`s motivation. Where there were conflicts of evidence, we regarded these as generally a consequence of differences of recollection or perspective, and have sought to resolve such conflicts by reference to the available documentation, and to the inherent probabilities where there was 30 insufficient documentation to resolve such conflicts. S/4104410/16 Page 5 8. Having regard to these comments on the witnesses, we can turn next to setting out our findings in fact. Findings in Fact 5 9. The claimant was employed by the respondent from June 2013,, and before that by its predecessor from July 2006, until 13 May 2016 as a bus driver. The respondent is a family owned firm, which operates bus and coach services under contract, and private hire services, in the Dumbarton area. It is a relatively small company, employing approximately 45 employees, 10 some 20 of whom are bus drivers. The Managing Director, since June 2013, is Mr William McColl Junior. Prior to 2013 Mr McColl was a Manager in the predecessor company, which was owned and run by his parents. The other managers of the respondent are Mrs McColl, Mr McColl`s wife, who has the job title of Engineering & Transport Director, but is not a statutory 15 Companies Act Director, and her father Mr John Gay, who is Traffic Manager. 10. Until 2011, the claimant had worked on a contract held by the respondent`s predecessor with a school, St Andrew's School. From 2011, he worked on 20 a contract held by the respondent with Lomond School, a private school in Helensburgh. The duties required to provide the contracted service to Lomond School were such that the claimant was able to work from 7am to 5pm Mondays to Fridays, which importantly enabled him to collect his son Jamie from after school care. The claimant required to collect Jamie by 25 6pm, to avoid incurring additional costs charged by the care provider. The claimant`s wife works in employment involving considerable travel, and is was not therefore in a position to collect their son from childcare with any regularity. 30 11. During the period that the claimant was working on the Lomond School contract, his contract of employment provided from a minimum of 28 hours a week, and a maximum of 48 hours a week, subject to extension if he had S/4104410/16 Page 6 signed an opt out under the Working Time Regulations 1998, which he in fact had. In practice the claimant`s weekly hours were either 49.25 or 48.75. 12. The respondent lost the contract with Lomond School in August 2015, 5 following a retendering exercise by the school. 13. Following the loss of the Lomond School contract, the respondent through Mr McColl sought to arrange for alternative work for the claimant, but it became apparent that this would impact on the hours at which he worked. 10 The claimant responded by raising a grievance, set out in a letter of 20 August 2015 to Mr McColl (page 75). In this letter, the claimant stated:- “Since the start date of my contract … I have been employed between the hours of 7am to 5pm Monday to Friday, and fulfilling 15 other duties (weekend overtime) as and when I was able to help. As you are aware, I have a commitment to collect my son by 6pm from his childcare and this has not changed since the start of my employment.” 20 14. The claimant went on to ask...