Case No. CR-2019-LDS-000669

361.The allegations in the Petition are that the dismissal of Charlie was unfairly prejudicial because it was motivated to prevent him identifying breaches of duty by the Relevant Respondents (including in relation to cash sales), so that he would not be able to report the same to Lisa; it was effected in breach of director’s duties to make it easier to hide breaches of duty from Lisa and it caused loss to LWC being the cost of the settlement with Charlie and legal costs incurred by LWC.362.On 26 April 2018, there was an incident at LWC’s premises. Charlie used a mobile phone while outside. This was not permitted. He was told off by John. John asserted that Charlie was aggressive back. 363.By letter dated 30 April 2018, Prodicus Legal wrote to John on behalf of Charlie complaining about the “extremely aggressive and provocative behaviour” to which he had been made subject “over the last 12 months or so”, culminating in an alleged assault on 26 April 2018. The first part of the assault was alleged to have arisen when John “confronted [Charlie] over a non-issue relating to use of telephone in the car park/skip storage area of the company site”. Having confronted Charlie it was said that John then “gestured towards his face with [his] hand with keys held at the same time” which “caused [Charlie] to legitimately fear that he would be subject to injury on or about the Area of his eyes from the keys”. Then, it was said, having returned indoors Charlie “pushed my client from behind causing him to stumble forward”. This was said to be “evidence of instability”. Charlie had been advised not to attend work until the board had dealt with the matter. 364.On 9 July 2018 a grievance hearing, followed immediately by a disciplinary hearing took place. The chair was Vicky Stoneman, a director of Effective HR Solutions Limited. That company provides an outsourced human resource function to small and medium sized companies that may not have the resources to have its own specialist human resources function. Charlie was accompanied by his union representative, a Mr Ron Stanley.365.As regards the grievance hearing, two complaints were identified: (a) that John Hughes had bullied Charlie since Charlie’s mother had left and (b) that Charlie’s employment terms were less favourable than they had previously been. 366.As regards the disciplinary hearing, the allegations were:(1)Using a mobile phone repeatedly in the yard, having previously been asked not to;(2)Speaking aggressively toward John on 26 April 2018.367.During the investigation, Ms Stoneman spoke to James John, and 4 employees as referred to in a letter of 11 July which I shall come onto.368.I have a very full note of the hearings which reads like a transcript (“the DH Note”). Among the points of note are the following:(1) Charlie had had statements from various witnesses which he went through with Ms Stoneman to the extent that he wished to.(2)When asked if he had sworn at John on 26 April 2018 he said he could not remember swearing at John.(3)According to the union representative: it was “custom and practice that employees do not use their phone, but John, so its creating a double standard”.(4)It was suggested by the union representative that the process was “contrived and John was doing [it] after the fact”. Ms Stoneman asked if they were content that she should hear the case, given that if they felt that the process was contrived then they must feel she was involved. The union representative confirmed that, on the contrary, they were “very happy” for her to hear the case as she was “unbiased”.(5)Ms Stoneman asked specifically whether there was any reason Charlie could think of as to why John would make up his statement that he had given previous warnings to Charlie about not using a phone and Charlie simply said: “it suits for me not to be here at the time”.(6)The union representative in summing up, said that John should withdraw the allegations against Charlie and find an appropriate method of mediation between himself and Charlie’s mother rather than bringing Charlie into the situation.(7)There was therefore no suggestion that the matter had been engineered to prevent Charlie finding out, or continuing to report to Lisa or Nora, about stock illicitly sold for cash and the proceeds not accounted for to LWC. 369.In a letter dated 11 July 2018, Ms Stoneman wrote to Charlie setting out her findings regarding his complaints under the grievance procedure. 370.As regards the allegation of bullying, this allegation was not upheld. Employees who had been asked did not want to get involved and so it was therefore very much one person’s word against another’s. The allegation broke down into three sub-allegations. 371.The first sub-allegation was that Charlie had been called into the board room on several occasions by John and was then told things like “Your mother is a fucking cunt”. As regards this, Ms Stoneman considered that the probabilities were against such allegations being true: first they had not been raised before and secondly it was unlikely that John would behave in this way knowing there were legal proceedings on foot and given the impact such conduct could have on those proceedings. She did not believe John would behave in that manner in any event.372.The second sub-allegation related to events on 26 April 2018 and were that John had waved his keys at Charlie in an aggressive manner and pushed him out of the doorway to his office. Ms Stoneman considered that John would not have waved keys in a threatening, let alone a bullying, manner and that the aggressor was in fact Charlie. As regards John pushing Charlie, she believed Charlie to be the aggressor and as he had never followed the matter up at the time did not consider that it could have been as serious an incident as Charlie had stated. It emerges from the DH Note that the keys being waived in his face was a matter that he had reported to the police which had never been followed up. 373.The third matter related to a “significant amount of paperwork with solicitors” regarding “numerous incidents” which Charlie said he would share with her. He did not do so. She could only base her decision on the facts before her. 374.Ms Stoneman also commented on a text from Charlie to an employee, Lisa Davey, in which he referred to feeling discriminated against. However, Ms Stoneman felt she had insufficient information on this matter or on what grounds Charlie felt discriminated against. She also noted that Lisa’s messages did not come across to her as someone who was concerned for him on a serious level but simply as though it was a family dispute “I am not getting in the middle”. This implied to Ms Stoneman that the situation was nothing out of the ordinary. She also noted that Charlie had at no point stated how the alleged conduct had left him feeling, which is what she would normally expect to see in a complaint of bullying and harassment.375.With regard to an alleged change in employment terms, the only differences identified were an absence of a company car for four months, but apparently at a time when Charlie had had an accident. The four month gap was not ideal. However, the fact that by the time of the hearing he had a car again did not suggest an intentional change in employment terms. As regards absence of the fuel card, this would not prevent him claiming expenses like any other employee and therefore she did not consider that the employment terms were less favourable on a permanent basis than they had been.376.In a further letter dated 11 July 2018, Ms Stoneman wrote to Charlie setting out the outcome of the disciplinary hearing. Both allegations were found to be made out and to amount to gross misconduct meriting immediate dismissal, which is what the letter give notice of. Ms Stoneman referred to two letters to employees about mobile phones but Charlie had said he had not seen them. Ms Stoneman does not seem to have relied upon these letters but rather upon Charlie having been verbally told on three earlier occasions in the same week not to use his mobile phone. She also referred to CCTV coverage but did not rely upon it as she felt it added nothing of value: both Charlie and John confirming Charlie had used his mobile phone. She said that she had spoken to James, and the four named employees who were made aware that their statements would be shared with Charlie.377.As regards the allegation of using the mobile phone, some key points coming out of the letter were as follows:(1) Both parties confirmed that Charlie did use his phone in the yard.(2)Charlies suggested (a) he was in the car park not a heavy plant area, so in fact there was no problem in him using his phone and (b) he had not received letters setting out a prohibition on employees using mobile phones and (c) the prohibition did not apply to him anyway as he did not operate heavy machinery.(3)As regards (a) and (c), Ms Stoneman considered that there are lorries driving in and out of the site on a regular basis and to be on the phone at any time was a distraction and dangerous.(4)As regards (b), Ms Stoneman accepted John’s evidence that Charlie had been told by John on three occasions in the three days immediately preceding the relevant incident that he should not use his phone. Charlie had denied this and suggested that John had made it up to get rid of him. Ms Stoneman considered that John did not fabricate his statement. He had worked alongside Charlie for at least two years even after Lisa left the business (in November 2015). If John had wanted to remove Charlie he would have done it at an earlier stage. If John used his phone that might appear to be double standards but ultimately employees should abide by the rules and the relevant instructions of their managers. Given this was the fourth relevant occasion, it was serious and the conduct likely to recur.(5)Ms Stoneman also commented: “I think the other issue is that whilst you are a relative of John and James, you are still an employee, and that the family ties are muddying the water somewhat.”378.As regards the allegation of speaking aggressively to John on 26 April 2018:(1) The conclusion was that Charlie did speak to John aggressively by using phrases such as “you are not my fucking boss”.(2)This conclusion was based upon the following matters: (a) When John challenged Charlie about using the phone, Charlie he did not just put the phone down but went up to him and challenged him and followed him into the building, that not being the actions of someone who has “just taken” verbal abuse from John as Charlie had asserted; (b) a text message from Charlie to another employee, Lisa Davey, 10 days earlier had been to the effect that Charlie was upset about the whole situation and that he felt he had been discriminated against, yet nothing had happened on the previous days when he had been spoken to by John about using his mobile phone. If John was the aggressor why didn’t anything different happen on those prior days?; (c) the reason for this behaviour was not provocation by John but a build-up of frustration and on the 26th Charlie decided to do something about it.379.On 14 December 2018, Charlie and LWC entered into an ACAS agreement under which LWC agreed, without any admission of liability, to pay Charlie £17,000 in full and final settlement of all and any claims that he might have under existing employment tribunal claims and all any and other claims that he had or might have then or in the future against LWC or any associated companies or its officers or employees whether arising from his employment, its termination or from events occurring after the agreement.380.I also have a transcript for the hearings on 9 July 2018.381.In his witness statement Charlie said that he started working at LWC in 2008, but that once his mother ceased working in the business day-to-day (which I took to mean after her suspension in November 2015), John “systematically” sought to dismiss him on numerous occasions. No examples were given as to what form this attempted dismissal had taken. Rather, he referred to verbal abuse that he received with regard to himself and his mother which he said was to try and provoke a reaction from him and to get him out of the business. He says that “when all this failed” John tried “other tactics”, which resulted in Charlie bringing an unfair dismissal claim.382.As regards the incident on 26 April 2018, in his witness statement Charlie asserts much of the same points that he raised at the disciplinary hearing: he was in the car park/skip storage area and there were no heavy machines in the area; he would not have used his phone near heavy plant; the use of his phone was critical for his job; heavy machine operators were not supposed to use mobile phones but he did not use heavy plant and was not such an operator. He, James and John used phones at the yard as they had done for years. The first time that the use by him of his mobile phone was criticised was after his mother was dismissed. 383.In his witness statement, Charlie said that once his mother left John systematically sought to dismiss me “so as to gain full control”. As Charlie was not a director it is unclear what this means.384.In his witness statement Charlie also alleged that he would take stock figures in an evening, count the tonnes of granules in the yard and then find “on a Monday morning” that there was “missing stock”. John, he says would use internal tickets rather than out tickets “when stock was being sold for cash deals”. He says that he told his mother and grandmother on “numerous occasions”.385.In cross-examination he accepted that he did not need to carry out stock takes for the purposes of his work for the Companies in doing deals and invoicing customers. Nevertheless he said that “every night” he would check and record the stock positions and that he would definitely do this every Friday. His explanation was that he just did this historically and not because his mother had raised an issue about it. In effect he said that he carried out a full audit on a daily basis of stock, reconciling the stock there with what finished stock had been produced in the day and what had been sold in the day. I consider this inherently unlikely and it would be a job that would have taken a long time. If it was so simple there is no real explanation as to why stock takes were so infrequent or difficult.386.For the first time, in cross-examination, he asserted that he had asked Steve Mower about where missing stock had gone and that he was told it had gone to C F Booth. He said that there were internal tickets that John had, in effect, doctored.