Mr T Butt v Asda Stores Ltd: 3313733/2019

Case Number: 3313733/2019 (V) EMPLOYMENT TRIBUNALS Claimant Respondent Mr T Butt v Heard at: Watford, via CVP Asda Stores Limited On: 17 and 18 March 2021 Before: Employment Judge Hyams, sitting alone Appearances For the claimant: For the respondent: In person Mr Jonathan Heard, of counsel RESERVED JUDGMENT 1. The claimant’s claim of unfair dismissal does not succeed and is accordingly dismissed. 2. The claimant’s claim of wrongful dismissal, i.e. for damages for breach of contract through the respondent’s failure to give him notice pay, does not succeed and is dismissed. The respondent was entitled to dismiss the claimant summarily because of the claimant’s refusal to attend his workplace. REASONS Introduction; the claims 1 In these proceedings, the claimant claims that he was dismissed unfairly and that he was wrongfully dismissed. The respondent accepted that it had dismissed the claimant. The claimant had ticked the box for “arrears of pay” in box 8.1 of the claim form. However, after I had had a careful discussion with him about his claims, he made it clear that the compensation that he was seeking was all 1 Case Number: 3313733/2019 (V) dependent on a finding that he had been dismissed either wrongfully, unfairly, or both wrongfully and unfairly. He was not, it was clear by the end of the hearing on 17 and 18 March 2021 before me, claiming anything else in respect of lost wages. 2 The parties agreed a number of facts, which meant that the evidence which I needed to hear was limited and related mainly (but not only) to the contractual terms that the claimant worked under. The evidence which I heard 3 I heard oral evidence from the claimant on his own behalf, and on behalf of the respondent from 3.1 Mr Yamoah Kusi-Mensah, who is employed by the respondent as a Deputy Store Manager at its Hayes store; 3.2 Mr Peter Sweetser, who is employed by the respondent as a General Store Manager (“GSM”); and 3.3 Mr Matthew Cork, who at the material time was employed as a Deputy Store Manager at the respondent’s Enfield Home Shopping Centre. 4 A 465 -page bundle was put before me. I read the parts of it to which I was referred. Several further documents were put before me during the hearing. Where I refer below to a page, I am referring to a page of the hearing bundle. 5 Having heard that oral evidence and considering the relevant documents, I made the following findings of fact. The facts 6 The claimant worked for the respondent from 22 September 2003 (see page 38) to 7 December 2018 (see page 352). He was first employed under the job title “Asda - Assistant”. That was shown by the offer letter dated 18 September 2003 at pages 37-39. That letter stated that the claimant’s contractual terms were set out in the letter and the “Colleague handbook” to which it referred, in the following terms: “This offer letter along with your Colleague handbook, which you will receive at induction, are your terms and conditions of employment with Asda.” 7 The claimant received a copy of that handbook on 29 September 2003, as shown by the signed receipt of that date at page 40. He received an updated version of the handbook on 21 January 2004, as shown by the signed receipt at page 42. Neither handbook was put before me. 2 Case Number: 3313733/2019 (V) 8 The claimant’s place of work at that time was the respondent’s Spondon Store. In 2007, the claimant transferred to work at the respondent’s Feltham Store, to work as a “Grocery Colleague”, as stated in the offer letter dated 12 June 2007 at pages 46-47. 9 On 13 August 2013, the claimant’s working hours were varied, as shown by the document at page 58, where the claimant was described as a “Shop floor assistant” in the “Grocery [Dept]”. By 2018, the stock which the claimant usually replenished was in what the respondent called its “Ambient” department. 10 On 16 May 2018, the claimant was (see page 120) required by the respondent to go and support colleagues at the Feltham Store checkouts, and he refused to do so on the basis that he had not received training to do so. 11 On 30 May 2018, the claimant was (see page 121) suspended for using threatening behaviour towards managers of the Feltham Store. That behaviour occurred after the claimant had on that day stated forcefully that he could not be required by the respondent under his contract of employment to work anywhere other than replenishing groceries. That in turn happened when a Section Manager, Ms Maia Tukhashvili, said that he should use a new system for processing waste. That new system involved the use of a piece of information technology called a TC70 which is in the shape of a gun. As described to me, it was a piece of equipment which is now commonly used in supermarkets of the sort which usually contains a bar code scanner. What happened on that day was recorded in the documents at pages 122-126, as I describe below. Pages 122-123 were written by Ms Sam Ahmed, the Feltham store’s People Trading Manager, in typed form on 31 May 2018. Pages 124-126 were handwritten notes made by Ms Kylie McConn, during an interview of Ms Tukhashvili carried out by Ms McConn on the same day, 31 May 2018. It was not clear to me whether or not the claimant accepted that Ms Tukhashvili was his line manager, but ultimately that was not material, although as I record below, Ms Ahmed (who might be expected to know the true position) referred to Ms Tukhashvili as the claimant’s “direct line or report”. 12 At that time the Feltham store operated a system for filling shelves of the sort which the respondent had used since the claimant started working for the respondent. That was to have staff such as the claimant going to the stock room and bringing out a trolley-load of stock, putting out on the relevant shelf or shelves as much as would fit there, and then taking back to the stock room what was left. However, some of the respondent’s other stores had started to use a new system, using the TC70 “gun”, which would tell a member of staff in the claimant’s position where to go in the stock room, what to collect there, and where to take it to on the shop floor, with no oversupply and therefore no need to return anything to the stock room. 13 On 30 May 2018, the claimant started work at 3pm in the store’s warehouse and asked Ms Tukhashvili what he could do. As recorded by Ms McConn at page 124 (and this was not contradicted by the claimant), Ms Tukhashvili said to the claimant 3 Case Number: 3313733/2019 (V) that the respondent had a new system, and she was going to teach him how to use the TC70 gun to process waste. What that involved was not explained to me, but whatever it involved, the claimant refused to do it, saying that he was “not a Process colleague” and that it was Ms Tukhashvili’s job to do it. He also said: “It’s your job, you guys are the section leaders, you need to do it”. 14 There was then apparently something of an argument between the claimant and Ms Tukhashvili. She was recorded at page 124 to have said to Ms McConn: “He started shouting he was very angry and walked away. Vernon (deputy) asked us to go upstairs because people where [sic] around us in the warehouse.” 15 At page 125, Ms Tukhashvili was recorded to have said to Ms McConn (I have added some punctuation to the original text): “I was trying to tell him to calm down. He would not stop shouting. Levent (GSM) came into the room and asked what was going on and why was there shouting. We all went into the training room. Tabarak [i.e. the claimant] carried on raising his voice. He was explaining what he wanted and how long he had worked for the company. He refused to train to work in any other department. He wasn’t even open to training on checkouts. I explained I would give him time to train on the departments. He refused. I noticed that he had started to record our conversation on his phone. Tabarak was not listening and was argumentative. Levent asked him to swipe out and go home as he was refusing to do any job tasks.” 16 Ms Ahmed’s description of what occurred was at page 122, where she said this (the original text had capital letters at the start of every line and was largely without punctuation; I have therefore tidied up the text a little, but without changing its meaning): ‘I was in the training room with Levent Karadag (GSM) doing PFSCFS with Diana (SM) when Vernon (Deputy) called saying that Maia (Section Leader) [i.e. Ms Tukhashvili] asked Tabarak to learn how to complete the task of waste due to the fact that Ambient colleagues are to be trained on TC70’s and he refused and that Tabarak and Maia are coming up to see me. I met with both of them in the People Office and I asked what the issue was. Maia started to tell me what had happened and Tabarak cut her off and started shouting and getting aggressive. I told him not to raise his voice and explain to me why he was refusing a reasonable request by his direct line of report. He continued to raise his voice and at the same time pointing and stating “He will do what he wants and he will not do anything other than his aisle.” I tried to explain through his shouting that he is contracted to Ambient and that involves everything in that dept and hence why he is receiving training on TC70. He continue[d] to use threatening behaviour to convey his conversation then Levent he entered the room as he could hear him shouting in the other room. When Levent came 4 Case Number: 3313733/2019 (V) in he could see that Maia looked really scared as he [i.e. the claimant] was shouting at the top of his voice and still pointing. I felt threatened by his behaviour and was glad to see the GSM come in and intervene. Levent asked him to calm down and explain what was wrong but he told him he will do as he pleased and continued to show and point at Maia. Then security was called and [the claimant was] suspended and had to be escorted out of the building due to his aggressive and threatening behaviour towards...