A jury awarded PS24700 to an engineer who won his age discrimination and unfair dismissal claim after finding that his colleagues had entered his home. Rob Moss summarizes the Braithwaite case, which involved homeworking, communication issues, a lack in equipment and unfair investigation.
A business partner in HR authorized employees of drinks manufacturer Refresco, to visit the property of a colleague while he worked from home. This was allegedly because he was concerned for his well-being, after an alleged delay returning a laptop.
In February 2022 Mr Braithwaite asked to be able to work at home on Tuesdays & Thursdays in order to provide emotional support to his teenage daughter who was suffering from a serious mental illness. Refresco granted the request.
Braithwaite was a controls engineer. He was responsible for writing code and fixing issues with software at Refresco Milton Keynes’ automated bottling facility.
The Nottingham Tribunal found that he was the primary user of the “PG” laptop, which had the only license to fix bugs and write code in the plant’s automation.
A colleague, Mr Simons was temporarily seconded to Line 53, which was a newly constructed production line.
The tribunal determined that Braithwaite did not have a prior disciplinary history and enjoyed a good relationship with his teammates, including Simons.
Braithwaite took his laptop to work every day for four months (he used it to perform 50-60% his duties), and no one ever told him not to. The tribunal found that Refresco knew he took the laptop home, and they were happy for him to continue doing so.
Refresco did not state anywhere in their policies that employees must ask permission before taking home equipment they provided. The tribunal was told that Braithwaite asked Braithwaite to purchase a second PG Laptop and a licence for Simons to use when he needed the software. Refresco refused to grant this request, and ignored the question of how the laptop should be shared.
The tribunal determined that Braithwaite returned to work the night before the incident at around 9pm to ensure that everything was working properly. This demonstrated his professionalism and dedication in his role.
The incident
A series of emails were sent between Simons, Braithwaite, and Mr Clarke (the maintenance manager) on the 14th of June 2022.
Braithwaite told Simons that a problem with the production line was easily resolved without a laptop or by a software engineer at the agency. Simons communicated with Braithwaite, but did not pass on his messages to Clarke.
Clarke became increasingly worried after Braithwaite missed the deadline of midday for Braithwaite to return the laptop.
The court heard that Clarke had sent him a text message at 1:12pm. After a lengthy exchange, Clarke replied: “The laptop shouldn’t be with you.” It’s not mine, it’s yours. Refresco owns it. It should be at the site. “I will need to be in charge of issuing laptops in the future so that we don’t get into this situation again.”
Braithwaite responded: “[Simons] does not need to go online to look at logic code though, does he?” Let’s talk about the laptop when I arrive on site tomorrow.
Clarke responded: “This is now above my head.”
The Claimant responded: “Whatever” at 1:54pm.
The tribunal found Ms Hudson’s HR business partner had, after consulting factory manager Russell Keers and Braithwaite, authorized a visit at Braithwaite’s home around 2.15pm.
The court found that Braithwaite’s refusal to return the laptop or his failure to communicate with them (which they found to be false) or the fact that this delay made them worried about their welfare (which the respondent claimed to have been a false explanation), were not the main reasons for the home visit. Instead, it was based on a suspicion that Braithwaite had used the laptop unauthorisedly.
Clarke testified that, after discussing the matter with his colleagues, including HR personnel, they felt they had no choice but to visit Braithwaite’s home to retrieve the laptop. He brought Mr Beckingham along with him.
Findings of the Tribunal on Trespass
Braithwaite opened the door after knocking and was told that the people “were there for the laptop”
He said: “You’re coming in”, or similar words. The panel found that, despite Braithwaite’s telling them he felt upset and despite this purported visit being for his welfare, Clarke, Beckingham, and the other members of the panel did not do anything to alleviate his distress.
Braithwaite closed the door. Beckingham poked his fingers into the letterbox to shout through it. The panel found that this was an infringement and a trespass onto Braithwaite’s property.
Braithwaite testified that when Beckingham began talking directly into his home, “I lost it and told them to go fuck and said they didn’t need the laptop.”
The respondents had entered the claimant’s home and provoked him, which led to his outburst. He later apologized for it. We found that the dismissal of the claimant was both procedurally unfair and substantively unjust, and out of the range of reasonable responses from any other employer.
The incident lasted around 25 minutes. The door opened and closed several times. The claimant’s daughter, who was mentally ill, spoke to visitors at one point. This, the tribunal said, was extremely distressing.
Beckingham said that Refresco believed Braithwaite was “too old” at the time to handle the new equipment.
Braithwaite said, “You’re welcome to the laptop.” What size do you want the laptop to be? He opened the door again, slammed it into their faces and appeared a fourth time holding the laptop.
The court ruled that this incident was trespassing. They did not have an “implied license” to enter the property. They opened the letterbox, shouted in the house and refused to leave when asked.
The tribunal stated that they “did not expect the respondent” to be familiar with the finer points of the trespass law. However, it is clear to any employer who has a reasonable mind that putting your hands in their letterbox to shout through it after they have closed the door or made it clear they were not welcome would constitute a violation of privacy.
The tribunal found that the F-word was “used often” in Refresco’s factory environment and that Braithwaite’s behavior was verbally aggressive for the first time when he was at home with his sick daughter.
Investigation
Braithwaite received a 15-minute notice the following morning to attend a meeting for an investigation. The panel determined that he had not refused to attend but rather asked reasonably for a copy the “home visits policy” prior to attending.
Refresco suspended Braithwaite pending investigation, as it did with Braithwaite for allegedly refusing to return the laptop a day earlier.
The panel and judge found that the investigation was unfair. Refresco informed Braithwaite only of one allegation, namely his failure to attend a meeting on the 15th June. The respondent did not inform him of two serious allegations, including refusing to return the PG Laptop to Braithwaite and verbal abuse towards his two co-workers.
Margitta Hamel / Shutterstock
In the investigation report, it was stated that “this leads me to a conclusion of gross misconduct”. The tribunal found it unfair and unreasonable that the investigation was completed before the claimant was even informed in writing of the allegations against him. The tribunal also found that the investigator had predetermined the allegations and “baked” them into the process from an early stage.
Dismissal and disciplinary meeting
In a letter, Braithwaite is accused of gross misconduct relating to three allegations.
- Clarke and Beckingham verbally abused, using offensive language
- Refusal to return the laptop
- Refusal of the refusal to attend an investigatory meeting until they had seen a “home visit policy”.
The tribunal pointed out that Braithwaite’s account of the allegations was not included in the documents attached to the invitation for the disciplinary hearing, nor were the messages he exchanged with Simons on the 14th June.
The tribunal found that Mr Wigham was aware of the fact that Braithwaite regarded his visit as trespassing while he cared for his mentally ill daughter.
The report found that Refresco, in both the investigational and disciplinary meeting, looked only for incriminating evidence against Braithwaite and not for exculpatory, which was a sign of predetermination towards him.
Braithwaite appealed his dismissal, but did not attend the hearing.
Judgement
Louise Brown, an employment judge, said that the respondents had trespassed onto the claimant’s land and provoked him to make his outburst. He later apologized for it. We found that the dismissal of the claimant was both procedurally unfair and substantively unjust, and out of line with the responses of other employers.
The claim of unfair dismissal was successful, as was a claim of age discrimination. The tribunal found the comment about Braithwaite’s age to be true and that Refresco had failed to give a nondiscriminatory explanation for its use.
said that the judgement limited its findings to Beckingham saying this to him. “We found that the discriminatory attitude was not shared by other employees in the company.”
The tribunal determined that the dismissal decision was based on the conduct of the day in question and found no evidence to suggest that it had been tainted with age discrimination.
Judge Brown ordered Refresco pay Braithwaite PS24.721, including PS5,000 in damages for direct age discrimination and interest.
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