Mr S Hickling v ASDA Stores Ltd: 2601439/2021

Case No: 2601439/2021 EMPLOYMENT TRIBUNALS Claimant Respondent Mr Steven Hickling v ASDA Stores Limited Heard: in Nottingham On: 16 June 2023 Before: Employment Judge Ayre Ms H Andrews Mr R Jones Representatives Claimant: Mr A Korn, counsel Respondent: Mr P Sangha, counsel FIRST REMEDY JUDGMENT The unanimous judgment of the Tribunal is as follows: 1. The respondent is ordered to pay to the claimant a basic award of £7,180.80. 2. The claimant’s applications for reinstatement and/or re-engagement fail and are dismissed. 3. The amount of the compensatory award will be determined at a subsequent remedy hearing. REASONS Background Case No: 2601439/2021 1. In a judgment sent to the parties on 13 April 2023 the Tribunal found that the claimant was unfairly dismissed but contributed to his dismissal by 45% so that the basic and compensatory awards should be reduced by 45%. The claimant’s claims for disability related harassment were dismissed. 2. The case was listed for a Remedy Hearing today and Case Management Orders were made to prepare the case for today’s hearing. The Proceedings 3. There was an agreed remedy bundle running to 211 pages. The parties also wished to refer to documents in the original bundle used at the liability hearing. The claimant gave evidence and had prepared a witness statement. Mr Korn prepared a written skeleton argument for which we are grateful. 4. At the start of today’s hearing, we discussed the issues that would fall to be determined. It became evident that there were a large number of areas of dispute between the parties, and very little agreement. We gave the parties, both of whom had the benefit of representation by experienced counsel, time to try and agree the issues, but they were unable to do so. 5. The only issues that were agreed were: a. The calculation of the basic award which, after a 45% reduction for contributory conduct, came out at £7,180.80; b. The amount to be awarded for loss of statutory rights; and c. The amounts claimed by the claimant for loss of shopping discount and gym membership. 6. The Tribunal was concerned that there may not be sufficient time to deal with all of the issues in the 3 hours allocated for the hearing. It appeared that, notwithstanding the Case Management Orders that had been made, the parties had left preparation for today’s hearing until the last minute. The respondent indicated that it had only received the claimant’s remedy witness statement two days before the hearing and had received four different Schedules of Loss. 7. There were discrepancies between the amounts claimed in the latest Schedule of Loss and in the claimant’s witness statement. The respondent’s position on some issues had also changed. For example, in the Counter Schedule of Loss the respondent appeared to agree with the claimant’s figure for loss of sharesave benefit, but during the hearing Mr Sangha indicated that it was not agreed. 8. In light of the state of preparation and the number of issues that fell to be determined, it was the unanimous decision of the Tribunal that we would deal today with the claimant’s application for reinstatement or re- engagement and make an order for the payment of the basic award, but that all other remedy issues would have to be determined at another hearing. Case No: 2601439/2021 9. A one day remedy hearing was fixed by agreement with the parties and Case Management Orders have been made separately to prepare the case for that hearing and avoid the difficulties that have been experienced today. Findings of Fact 10.We make the following findings of fact on a unanimous basis. 11.The claimant gave evidence today that he did not believe that trust and confidence between him and the respondent had broken down irretrievably. His remedy witness statement also said however that his mental health had been severely impacted by what happened to him at work, to the extent that he had no alternative but to seek medical advice and was prescribed anti-depressants and counselling. 12.The claimant’s evidence, which we accept, is that he found it extremely difficult to carry on after the way in which the respondent’s management accepted Adrian Stretton’s account without attempting to investigate the mitigation that he put forward. He has suffered from poor mental health and continues to receive treatment for that. 13.Even now, the claimant finds it very difficult to even drive past his former place of work. 14.It is clear from his evidence to the Tribunal at today’s remedy hearing that the claimant is still very upset by what happened to him at work, and resentful. He told the Tribunal that if the respondent had done its job properly he would not have been dismissed, and maintained that Adrian Stretton had been lying. 15.In his evidence to the liability hearing (paragraph 19 of his witness statement for that hearing) the claimant said that from December 2019 to March 2021 ASDA had been complicit in allowing him to suffer continuous abuse and harassment in the workplace on a daily basis whilst clearly being aware that it was taking place. His statement also said that there had been a ‘clear pattern of targeted victimisation’ and that the respondent had treated him with indifference and insouciance. 16.The claimant gave evidence to the liability hearing that what happened to him at work led to him having a lack of confidence and trust in the management that should have protected him whilst he was employed. 17.During today’s hearing the claimant said that the reference to a lack of confidence and trust was in relation to the local management at the depot where he worked, and Paul Statham the dismissing manager in particular. He said that his issues were not with the company, and that the general manager and shift manager had been replaced since he left. He also referred however to Adrian Stretton having lied, and to Liam Hough having failed to carry out any investigation. Both Mr Stretton and Mr Hough are still employed by the respondent. The Law Case No: 2601439/2021 Remedies for unfair dismissal 18.Section 112 of the Employment Rights Act 1996 (“the ERA”) sets out the remedies that can be awarded for unfair dismissal: “(1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of...