An engineer has been awarded £24,700 after winning his unfair dismissal and age discrimination claim in a case where the employment tribunal found colleagues had trespassed his home. In a complex case encompassing issues around homeworking, communication, a lack of necessary equipment, and an unfair investigation, Rob Moss summarises the judgment in Braithwaite v Refresco Drinks UK.

An HR business partner authorised employees from drinks manufacturer Refresco to visit a colleague’s property while he was working from home, purportedly because of concerns for his welfare, following an alleged delay in returning a work laptop.

In February 2022, Mr Braithwaite, asked to work from home on Tuesdays and Thursdays to help provide emotional support for his teenage daughter, who had a serious mental health condition. Refresco granted his request.

Braithwaite worked as a controls engineer. His duties included writing code and fixing software issues for Refresco’s automated bottling plant in Milton Keynes.

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The Nottingham tribunal found he was the main user of the sole “PG” laptop that had the only licence to fix bugs in the automation at the plant and to write code for the system.

In the summer of 2022, a colleague, Mr Simons, was seconded on a temporary basis to work on Line 53, a new production line which was under construction.

Until the incident in question, the tribunal found Braithwaite had no prior disciplinary record and had a good working relationship with his team, including Simons.

Throughout his four months working from home, Braithwaite regularly took the laptop home to do his job (he needed it for 50-60% of his duties) and no one had ever suggested to him that he must not do this. The tribunal found Refresco was aware he was taking the laptop home and were content for him to do so.

Nowhere in Refresco’s policies did it state that an employee must seek permission to take home equipment provided by them. Indeed, the tribunal heard that Braithwaite had asked for a second PG laptop and licence to be purchased for when Simons also needed to use the software. Refresco did not grant this request and the issue of the single laptop and how it should be shared was ignored.

The night before the incident, the tribunal found that Braithwaite had gone back into work at around 9:00pm to check all was in working order, and that this demonstrated his high degree of professionalism and dedication to his role.

The incident

On 14 June 2022, the day of the incident, a series of communications were exchanged between Simons and Braithwaite and, separately, between the maintenance manager, Mr Clarke, and Braithwaite regarding the availability of the laptop.

Braithwaite advised Simons that an issue with the production line could be resolved without the laptop, or that an agency software engineer could make the necessary changes. Simons was communicating with Braithwaite but not relaying his messages to Clarke.

Clarke, who had given Braithwaite a deadline for the laptop to be back on site by midday, grew increasingly concerned.

The tribunal heard that at 1:12pm Clarke sent him a message and, following a detailed exchange, Clarke wrote: “The laptop should not be with you. It’s not yours, it’s mine, Refresco own it, it should be on site. I will have to control the issuing of the laptop in future to ensure we are not in this situation again.”

Braithwaite replied: “[Simons] doesn’t need to go online though to look at the logic code does he? Let’s have the conversation about the laptop tomorrow when I am on site.”

Clarke replied: “This has now gone above my head.”

At 1:54pm, the Claimant replied: “Whatever.”

The tribunal found that Ms Hudson, HR business partner, after consulting with factory manager Russell Keers, authorised a visit to Braithwaite’s home at around 2.15pm.

It found that the home visit arose not just from an allegation that Braithwaite was refusing to return the laptop, or that he had ceased to communicate (which it found he had not), or that this delay caused them to be worried about his welfare (which it found a false reason from the respondent), but that it arose mainly due to a suspicion that the claimant was using the laptop for some unauthorised reason.

Clarke gave evidence that after discussing the situation with colleagues, including HR, they decided they had no alternative but to go to Braithwaite’s house to collect the laptop. He took another member of his team, Mr Beckingham, with him.

Tribunal findings on trespass

After knocking on the door, Braithwaite initially opened it and they simply told him that they “were there to pick up the laptop.”

He stated: “You’re not coming in”, or words to that effect. The panel found that despite Braithwaite telling them he was upset, and despite the purported nature of this visit being about his welfare, Clarke and Beckingham did nothing whatsoever to address his clear distress.

Braithwaite shut the door. Beckingham put his fingers through the letterbox so that he could shout through it. The panel decided this was invasive and amounted to a trespass on Braithwaite’s property.

Braithwaite gave evidence that when Beckingham started talking directly into his house, “I lost my temper and told them to fuck off and said they didn’t need the fucking laptop.”

The respondents had trespassed on the claimant’s property and provoked the claimant, causing his outburst for which he later apologised. In all of these circumstances, we found the claimant’s dismissal both procedurally and substantively unfair and outside the reasonable band of responses of any other employer” – Employment Judge Brown

The incident lasted for around 25 minutes, with the door opening and closing several times. At one point, his mentally unwell daughter also talked to the visitors, which the tribunal found was highly distressing for the claimant.

During the incident, Beckingham stated that Refresco thought Braithwaite, who was 58 at the time, was getting “too old” to handle the demands of new equipment.

When Braithwaite opened his door for the third time he said: “You can have the fucking laptop then. How many pieces do you want it in?” He slammed the front door in their faces again and then appeared for a fourth time with the laptop in its bag and handed it over to them.

The tribunal found that the incident amounted to trespassing. There was no “implied licence” for them to attend the property, they opened the letterbox and shouted into the house, and did not leave when asked.

While the tribunal did “not expect the respondent to know about the finer details of the law on trespass”, it would be clear to any reasonable employer that it was a breach of an employee’s privacy to insert your hands into their letterbox and shout through it when they have already closed the door and made clear they are not welcome.

The tribunal found the F word was “used frequently” in Refresco’s factory environment, and that the incident, when at home caring for his seriously unwell daughter, was the first time Braithwaite had behaved in a verbally aggressive way to colleagues.

Investigation

The following morning Braithwaite was asked to attend an investigation meeting at 15 minutes’ notice. The panel found he did not refuse to attend, but instead reasonably asked for a copy of the “home visit policy” before attending.

As with Braithwaite’s alleged refusal to return the laptop the day before, this was seen as a failure to carry out a reasonable request, and Refresco suspended the claimant pending an investigation.

The judge and panel found the investigation to be unfair. Refresco only advised Braithwaite of one allegation: his failure to attend the meeting on 15 June. The respondent failed to advise him of the two more serious allegations of refusing to return the PG Laptop and verbal aggression to his two colleagues.

Margitta Hamel / Shutterstock

The investigation report stated that this “leads to me to a decision of gross misconduct”. The tribunal found that it was an unreasonable and unfair investigation process that was concluded before the claimant had even been told in writing what the allegations of gross misconduct against him were. It also found it evident of predetermination by the investigator of the allegations which became “baked in” to the process at an early stage.

Disciplinary meeting and dismissal

A letter set out that Braithwaite was accused of gross misconduct in relation to three allegations:

• Verbal abuse of Clarke and Beckingham, including offensive language
• Refusal to give back the company laptop
• Refusal to attend the investigatory meeting until he had seen a ‘home visit policy’.

The tribunal noted that attachments to the invitation to the disciplinary hearing did not include any document from Braithwaite that gave his account of the allegations, and that the attachments did not include the messages between him and Simons on 14 June, only the messages between him and Clarke.

When Mr Wigham, a general manager from another Refesco site who chaired the disciplinary meeting, decided to instantly dismiss Braithwaite, the tribunal found, he was aware that the claimant regarded the visit to his property as an act of trespass while he was caring for his mentally unwell daughter.

It found that in both the investigatory and disciplinary meetings Refresco looked for inculpatory evidence against Braithwaite, instead of looking also for exculpatory evidence, and that this was evidence of a predetermination mindset towards him.

Braithwaite appealed against his dismissal but did not attend his appeal hearing.

Judgment

Employment judge Louise Brown said: “The respondents had trespassed on the claimant’s property and provoked the claimant, causing his outburst for which he later apologised. In all of these circumstances, we found the claimant’s dismissal both procedurally and substantively unfair and outside the reasonable band of responses of any other employer.”

The claim for unfair dismissal succeeded, and a claim for age discrimination also partially succeeded. The tribunal found that the remark about Braithwaite’s age was made and that Refresco failed to provide a non-discriminatory reason for its use.

“However, our findings are limited to the fact this was said to him by Beckingham” said the judgment. “We did not find that this could be imputed to the decision maker… Clarke, nor that it proved others in the organisation also had this discriminatory mindset.”

The tribunal found that the decision to dismiss revolved around the conduct that day and it found no evidence that the decision had been tainted by age discrimination.

Judge Brown ordered Refresco to pay Braithwaite £24,721, which included £5,000 for injury to feelings in relation to direct age discrimination, plus interest.

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