“Tony Chapman came into the sports hall with Monica and as he came through the door he was shouting he is not our slave, saying why can’t you do it. I responded we normally do it but due to the fire in town buses were delayed meaning we were a bit behind in setting up. He then went to shout at me if you went for a shit would you like me to wipe your pissing arse. As a result of what Tony said to me I swore at him. This resulted in Charlie from the climbing wall shout above down to us, please do not swear and stop the shouting we have customers. I apologised. Tony then said he didn’t swear which she had. I feel so disappointed as there was a member of management Team present Monica Tebbutt who did nothing and fully witnessed Tony’s actions, they then left the hall Then after the session had finished at 7:15 pm Tony came back into the hall with Joe [Trolley], Monica and a young girl. He came in all macho and larry (sic). Tony started to pick up the mats, he then went to grab me and I said don’t because I have a shoulder injury. He then ran after Joyce and chased and grabbed her and was messing about with her. After this he continued to throw the equipment out the cupboard for the next day of archery. I was then near the roll of mats and he came behind me and put his arms around me from the back and I said let me go or I will bite you. He didn’t let go and I bit him slightly. He then grabbed my head and pushed it towards his groin area and said if you want to bite anything bite this. I was in such shock and cannot remember what then happened, all I remember was all staff around me were laughing at it. I am not sure who was there to witness this but it will be on CCTV. Then after the session had been put away I went out to the side entrance fire exit where my partner picks me up, but he wasn’t there yet. Tony came again to me and grabbed me again by my coat and said get in here, pulled me by the coat neck and said your old man isn’t here he don’t want you. I told him to let go what she did, Joe was there, I asked Joe what is wrong with Tony today he’s not right and told Joe I was going out the fire exit would you shut the door and I left.”
“the set-up incident”, “the take-down incidents”, and “the office incident”
“The take-down incidents 20. The take down incidents have been captured on CCTV footage and they show the following events: At around 7:20 pm, several Leisure Centre Attendants, including AG, are seen clearing away equipment in the sports hall. At around 7:24 pm, Mr Chapman, Ms Tebbutt and Mr Trolley arrive in the sports hall. Mr Chapman is then seen chasing Miss Joyce Adams around the hall which involves at one stage him lifting Ms Adams off her feet. There is then physical contact by Mr Chapman with AG. It is described as ‘grabbing’ by the Respondent. The exchange lasts no more than a few seconds. The Claimant’s head visibly moves downwards at the same time that Mr Chapman has his arm around AG’s neck. All the staff including Mr Chapman and Ms Tebbutt are then engaged in setting up. Mr Chapman then once again initiates physical contact with AG near one of the walls. This part of the footage is not clear from either angle. Ms Tebbutt is not seen to be directly involved in any of these interactions. At a slightly later point she is seen using the hula hoops for her own leisure. This is followed by some of the other staff who then also begin hula-hooping. Mr Chapman is then seen throwing an unidentified object at one of the staff members (not AG). Finally, after a short interlude Mr Chapman is seen engaging in a verbal exchange with AG by the fire doors. 21. In the statement for the investigation, AG said this of the take-down incidents: “We started packing up, then he [Mr Chapman] came in with Monica [Tebbutt], Jo, his daughter. He [Mr Chapman] came in leery and loud, starts packing up. He came over and he tried to grab me. Then all of a sudden he ran after Joyce and grabbed her, grabbed her around the legs to pick her up. Off he trots to pick up mats. He then came behind me and puts her arms around me tight, and I said get off or I’ll bite you. I bit him lightly, then he grabbed my head and said if you want to bite something bite this as he shoved my head towards his groin. He then ran off and was chucking things. … My husband picks me up. Tony [Chapman] dragged me back in and said “Your husband is not here yet, he don’t want you”
“Allegation 1 – You behaved inappropriately within the workplace, to include verbal abuse, aggression, physical assault and sexual harassment. This is a breach of Leicester City Council Code of Conduct and Dignity at Work policies. It was evident at the investigation meeting that you were not able to remember the incident and when questioned said that you couldn’t remember any grabbing or shoving of the head down to your groin and what you said to AG at this time. Upon viewing the CCTV footage at the investigation meeting, your view is AG is not distressed and that it was just banter and couldn’t understand why she would do this? Although after viewing the CCTV footage you were able to recall the incident you are unable to remember what you said when you grabbed and shoved (AG’s) head, I do believe on the balance of the evidence presented that you did say what was reported by (AG). What you said at this time along with the physical contact is a degrading and humiliating act. Beyond this appalling act it is my view that you continued to humiliate (AG) by dragging her back and saying what you did, as she waits being picked up by her husband. My assessment of the evidence is that you have physically assaulted a fellow employee and have sexually harassed and verbally abused (AG) causing significant emotional and physical distress to the employee who has had to encounter your extremely offensive behaviour and conduct. As an experienced Leisure Centre Attendant there is a level of trust and confidence placed in you to go about your duties in a respectful and dignified way. The Leisure Centre Attendant, Job Description states that the role ‘is to provide a working environment free of harassment and discrimination’. It is my view that you failed to uphold a fundamental objective of the Leisure Centre Attendant role. The Council’s Dignity at Work Policy states harassment is unwanted physical, verbal or nonverbal conduct, which has the purpose or effect of violating someone’s dignity, or which creates a hostile, degrading, humiliating or offensive environment. I have no doubt that your behaviour on the 13 April when you grabbed (AG) amounted to serious physical and sexual harassment. The Investigating Officer stated in the Management Statement of Case that ‘it was evident from the investigation meeting that TC did not understand how the behaviour affected a fellow employee and continued to pass the behaviour off as ‘banter’ or ‘having a laugh’. It is quite concerning that TC does not appear to understand the severity of his actions. I believe that it is no longer feasible for TC to continue in the role of Leisure Centre Attendant at Leicester City Council. Based on the evidence presented at the hearing I fully agree with this statement. It is my view that you have endeavoured to downplay your actions and behaviour as leisure centre banter with (AG) and deflect attention from, or justify what is actually appalling targeted behaviour that clearly constitutes physical and sexual harassment of a fellow employee. Your behaviour and conduct has no place within Leicester City Council. Although I took on board that you apologised for your behaviour and that you state that it shouldn’t have happened I feel that your position on this has changed due to the evidence that has been presented against you at the hearing. Allegation 2 - your actions and lost trust and confidence that has been placed in you as an employee of Leicester City Council I find you blameworthy of this allegation. I have taken in to account my decision against the first allegation, which in itself has resulted in a lack of trust and confidence in you to perform your role with Leicester City Council. … Allegation 3 – Your actions have the potential to bring the Council in to disrepute. Following the evidence presented at the hearing I find you blameworthy of this allegation. Although it was established at the hearing that the Council did not receive any complaints from customers, that may have observed the behaviour or overheard the swearing and derogatory language, there was a significantly high level of risk that customers could have made a formal complaint. The behaviour and conduct shown on the CCTV has the potential to result in formal complaints and comments via social media platforms on the behaviour shown by Council staff. As a Council service we have a responsibility to protect the reputation of the Council to members of the public. The behaviour and conduct of yourself has the potential to create reputational harm both to the service and the Council as a whole. …”
“56. Whilst I do not consider much turns on the failure to obtain a witness statement from Miss Allridge, it is part of a series of failings. … 57. The question of delay in the investigation is however a different matter. The relevant incident occurred on13 April 2018 . There was therefore a gap of 10 days until Mr Browning became aware of the incident so the need to expedite must already have been apparent from the outset. Mr Chapman was suspended on 26 April but had not been told that he was accused of an incident as serious as an allegation of sexual harassment. Mr Chapman received a letter of suspension which did not provide any useful information other than that he had “behaved inappropriately”
“You’re telling me that didn’t happen?” 60. The role of an investigating officer is, broadly, to establish facts rather than to draw conclusions. Whilst it is unrealistic to expect an employer to remain scrupulously neutral throughout, Mr Browning’s approach was redolent of a predetermined view. The whole of the investigation is therefore marred by a partial and biased approach. The following extracts from his investigation report illustrate the point: A review of the CCTV … shows clear evidence that TC’s behaviour at work is inappropriate. It is evident that the behaviour at work from TC is inappropriate and a clear breach of Leicester City Council’s Code of Conduct. TC clearly does not see the behaviour as an issue, sniggering while watching the CCTV footage at staff behaviour within the investigation meeting. TC passes off the behaviour as a laugh or joke, something that happens everywhere and it is just having banter The CCTV clearly shows that TC is not being honest, grabbing AG on a number of occasions and there is movement of grabbing AG head and pulling downwards. AG is clearly very upset by the incident, crying during her investigation meeting. TC was not concerned by the grabbing of AG, and how she looked intimidated. TC’s behaviour has lost trust and confidence that has been placed in him as an employee of LCC. Furthermore, TC has been dishonest throughout the investigation process and failed to show remorse or compassion for his actions. 61. Moreover, Mr Browning reaches conclusions that could not possibly have been based on the evidence before him. The CCTV evidence does not have any sound. It is therefore difficult to see how Mr Browning was able to draw the conclusion that Mr Chapman said to AG: “Your husband isn’t here yet, he don’t want you”
“(1) behaving inappropriately, verbal abuse, aggression, physical assault and sexual harassment (2) loss of trust and confidence and (3) bringing or actions which could potentially bring the Council’s name into disrepute.”
“79. Mr Beddow faced a serious conflict of accounts. As in most cases, the CCTV evidence was largely inconclusive and was of no value on the alleged comments. Despite the footage from two different angles, it remains relatively unclear. 80. It is self-evident that for an employer to have a reasonable belief there must be a reason for that belief. Mr Beddow evidently considered his task was to decide who to believe in relation to the disputed remarks. Mr Chapman consistently denied that he made them – other than some swearing which does not appear to have been critical in Mr Beddow’s thinking - or could not recall making them. 81. There were no direct witnesses who confirmed or supported AG’s account or that of Mr Chapman. The only two independent relevant witnesses were Ms Mills and Ms Adams. Ms Mills had said that whilst she saw Mr Chapman ‘grab her [AG’s] head’ and believed that ‘they did speak’, she ‘did not hear what was said’. 82. Ms Adams was the only other person in close proximity. Her account was as follows: “Because it happened so quick, I saw him near her but I cannot remember it fully, I know he was close but don’t think I seen it, as I was doing the lifting. Must have just had my head down and missed it.” 83. The witnesses in closest proximity therefore did not adequately hear to give a definitive account of the events or could not be certain of what they saw or heard. It is possible that Mr Beddow could have concluded that the act of pushing AG’s head down towards his groin or in that direction was consistent with Mr Chapman saying that ‘if you want to bite something bite this’. That might provide a possible link. But Mr Beddow does not say that nor does he draw any such conclusion or inference. What he ultimately says is: “I do believe on the balance of the evidence presented that you did what was reported by AG”
“90. … Firstly, there is more than a sense of indignation in Mr Beddow’s language which is a continuation of the predetermination mindset introduced by Mr Browning: It is quite concerning that TC does not appear to understand the severity of his actions …. appalling targeted behaviour that constitutes physical and sexual harassment of a fellow employee. Your extremely offensive behaviour and conduct. 91. The second is the relatively short amount of time that Mr Beddow took to decide. The disciplinary hearing began at 9.37am and lasted until 3.17pm when Mr Beddow retired for deliberations. At 4.15pm, less than an hour later, Mr Beddow was able to reach his decision. The relatively short amount of time spent in deliberation could not have meant that Mr Beddow gave this matter the genuine and careful consideration as suggested on his behalf.”
“101. The Respondent has failed in my judgment to establish that the misconduct did as a matter of fact occur. It has not called any relevant evidence to discharge the burden other than the CCTV evidence which of course has no audio. The Respondent has fallen into the trap of thinking that the only relevant witnesses would be the dismissing officer and an appeal panel member. Whilst that is ordinarily sufficient for unfair dismissal purposes it is not generally sufficient for the wrongful dismissal claims. Absent proof of misconduct (on a balance of probabilities) then the Code of Conduct becomes irrelevant. It may have been difficult to call AG but not impossible. At best, the Respondent is able to establish physical contact by Mr Chapman from the CCTV evidence but the physical contact of itself does not establish sufficient evidence of a repudiatory breach, let alone physical assault or sexual harassment.”
“The function of the Employment Tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band it is unfair.”
“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”
“... Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of on one side or the other.”
“It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question- whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”
“… [the ET] should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care … to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.”
“The reading of an employment tribunal decision must not … be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which a decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”
“… where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should …be slow to conclude that it has not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal’s mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced specialist tribunal applying very familiar principles whose application forms a significant part of its day to day judicial workload.”
“78. In relation to Mr Chapman and the take-down incidents there are two aspects to consider: there is firstly the physical behaviour of Mr Chapman as viewed on the [CCTV] footage and secondly, his remarks that are said to accompany the behaviour. Absent the latter, I am satisfied that the Respondent would not have regarded the incident as one of sexual harassment. …”