Mr H SinghClaimantAF Blakemore & Son LtdRespondent
Before
Employment Judge HussainIn person for claimantMrs Blakemore (instructed by representative) for respondentDate 8 November 2024
JUDGMENT
[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.
REASONS
[1]The claimant, Mr Harman Singh, was employed by the respondent, AF Blakemore & Son Ltd, as a Warehouse Operative at the respondent’s Willenhall site. The claimant was employed by the respondent from 05 November 2018 until 22 September 2023, when he was dismissed on grounds of serious misconduct.[2]The claimant claims that his dismissal was unfair within section 98 of the Employment Rights Act 1996. He also claims that he was entitled to notice pay.[3]The respondent contests the claim for unfair dismissal. It says that the claimant was fairly dismissed for serious misconduct for using a racial slur, and it was entitled to terminate his employment without notice because of his misconduct.[4]The claimant was not represented and gave sworn evidence with the assistance of a Punjabi interpreter. He called Kiranpreet Kaur, a colleague Case No: 1300536/2024 who worked for the respondent, to give evidence. Initially the respondent was represented by Mrs Whitemore, (Counsel), but when she was called away part way through the hearing Mrs Blakemore (HR Business Partner) took over. The respondent called Samual Tomlinson (Shift Manager), Miss Chloe Ball (Operations Manager) and Mr Daniel Smith (General Manager) to give evidence. I considered the documents from an agreed bundle consisting of 130 PDF pages, which the parties introduced in evidence. Issues for Tribunal to decide[5]Prior to hearing the evidence, I discussed the issues in dispute with the parties. Although the Polkey and contributory conduct issues concerned remedy and would only arise if the claimant’s complaint of unfair dismissal succeeded, I agreed with the parties that I would consider them at this stage and invited them to deal with them in evidence and submissions. The remedy issues were also dealt with at a separate remedy hearing as there was insufficient time to determine remedy at the conclusion of the liability hearing. The issues for the Tribunal to decide included: Unfair dismissal27.1 What was the principal reason for the claimant’s dismissal and was it a potentially fair reason under sections 98(1) and (2) of the Employment Rights Act 1996? The respondent asserted that it was a reason relating to the claimant’s conduct.27.2 If so, was the dismissal fair or unfair within section 98(4), and, in particular, did the respondent in all respects act within the band of reasonable responses. The claimant stated that the dismissal was unfair because the respondent did not follow a fair process; namely the claimant was not given access to CCTV footage of the incident and he was not shown the MDS records which, amongst other data, shows who had clocked in and where they are working. The claimant also contended that colleagues were not sufficiently questioned about inaccuracies in their statements and all witnesses should have been spoken to together to establish the facts. He further contended that the decision was not within the range of reasonable responses.27.3 If the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd [1987] UKHL 8; Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604. The respondent said that the claimant would have been dismissed in any event, therefore any award should be reduced by 100%. The claimant contended that he would not have been dismissed.27.4 Did the claimant, by his blameworthy or culpable conduct, cause or contribute to his dismissal to any extent, and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award under section 123(6)? The respondent said that the compensation should be reduced by 100%. Case No: 1300536/202427.5 How much notice was the claimant entitled to receive? This was not in dispute: it was 5 weeks’ notice.
Findings of fact
[6]I found the following facts proven on the balance of probabilities, after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are references to the PDF page number of the digital copy of the agreed bundle of documents.[7]The claimant commenced his employment with the respondent’s logistics division on 05 November 2018 as a warehouse operative, in the respondent’s warehouse in Willenhall in the West Midlands [28]. The respondent is a distributor to over 1000 Spar stores [28] across England and Wales.[8]The claimant was contracted to work 40 hours per week over 5-6 days. His role involved picking goods from racking and placing onto cages for customers to fulfil their orders [38].[9]The claimant had a clean disciplinary record until he was dismissed on 22 September 2023 by the respondent for gross misconduct [28].[10]Regan Whitehouse and Dean Davies were the claimant’s colleagues. The claimant felt harassed by these colleagues who swear when speaking to him and make inappropriate comments about his working hours.[11]On 11 September 2023 at approximately 4:00am the claimant was working alongside his colleague, Regan Whitehouse. A conversation took place between the claimant and Mr Whitehouse where Mr Whitehouse asked the claimant if he could smell deep heat. The claimant responded by asking what deep heat was. Mr Whitehouse explained that it a spray for knee and ankle pain. The claimant states that he said, “it’s probably the guy at the back”. Mr Whitehouse reported to the respondent that he heard the claimant say that it’s “probably that N***** at the back”. There are no witnesses to this conversation. Mr Whitehouse also reported to the respondent that this comment was directed at Chevez Myrie.[12]Mr Whitehouse then approached Mr Myrie and told him that he mentioned to the claimant that he could smell BO (in reference to body odour) and that the claimant responded by saying “that black monkey N***** over there”. Mr Whitehouse told Mr Myrie that this comment was directed at him [65]. The account given by Mr Myrie reflects what he was told by Mr Whitehouse as Mr Whitehouse claims in one of his accounts that the words “BO” and “black monkey” were used.[13]When asked to provide an account of the incident, Mr Whithouse, in his initial statement, stated that there was a conversation about deep heat and Case No: 1300536/2024 that the claimant responded by saying it’s “probably that black n***** behind us” [63], but when interviewed by Jon Davies on 12 September 2023 he claimed that the claimant responded by making the comment it’s “probably that n***** behind us” [69]. In that interview, Mr Whitehouse was also asked to confirm whether comments had been made that Mr Myrie smelt of BO, and was a “black monkey”, and Mr Whitehouse responded by saying “it’s 100% what I heard” [71]. Mr Whitehouse gave 3 different accounts of the particular words he says were used by the claimant during the conversation. Due to the inconsistent accounts given to the respondent during the investigation, I find that the accounts given by Mr Whitehouse cannot be depended upon to determine what was said during the conversation between him and the claimant.[14]Mr Whitehouse’s account of the conversation between him and the claimant in unreliable. This is because he gave variable accounts of the particular words allegedly used by the claimant, there is a potential motive for making an untrue allegation, and there are no independent witnesses to the conversation to corroborate any of Mr Whitehouse’s accounts.[15]Mr Whitehouse also told Shakeer Parry [64] and others that the claimant had used the N word, before finishing his shift.[16]At approximately 5:30 am Mr Myrie confronted the claimant and said, “who are you calling n*****?”, and the claimant responded saying “why would I call you n*****?". The claimant then ran, and Mr Myrie ran after him before being held back by colleagues. I do not accept Dean Davies account that the claimant, at this point called Mr Myrie “n******”.[17]Although Mr Davies initially stated that he had heard the claimant call Mr Myrie “n*****”, when interviewed, he later said that he was not sure whether the claimant referred to Mr Myrie as the N word or he had heard the claimant say the N word [103]. Both the claimant and Mr Myrie in their statements accept that the N word was used during this confrontation, but the claimant denied using it to refer to Mr Myrie and Mr Myrie, in his statement, did not say that claimant called him the N word at that time. The evidence of Mr Myrie and the claimant corroborates the other’s account and I find it to be a more accurate reflection of this incident than the account given by Mr Davies. Further Mr Davies was not near Mr Myrie and the claimant, and concluded his interview by accepting that he had heard Mr Myrie saying “who are you calling the n*****”, which is more consistent with the evidence of Mr Myrie and the claimant.[18]Mr Myrie and the claimant were separated, and a further incident occurred in the canteen where the claimant was attacked by Mr Myrie.[19]An investigation commenced by Samual Tomlinson (Shift Manager) who collected statements from Mr Whitehouse, the claimant, Mr Davies and Mr Myrie [126].[20]Mr Myrie provided a statement [64] stating that Mr Whitehouse approached him around 5:30am stating that around 3:00am that someone had said that he smelt of BO and said “that black monkey n*****”. He went on to say that he continued with his work, before another colleague approached him stating that Mr Whitehouse had told him about a racial slur being directed Case No: 1300536/2024 at Mr Myrie, as had two to three other people. Mr Myrie then approached the claimant to ask whether he had a problem with him and the claimant reacted by running away and others intervened to stop the altercation from escalating.[21]In his statement, Mr Whitehouse said that there was a conversation about the smell of deep heat and the claimant made a comment that it is “probably that black n***** behind us” [63].[22]The claimant was interviewed by Mr Tomlinson on 11 September 2023 [59-61]. The claimant gave an account of a discussion with Mr Whitehouse about deep heat and said, “it might be the guy at the back” [59]. This was consistent with his written statement [58].[23]On 11 September 2023 the claimant was suspended by Mr Tomlinson after his interview. Mr Tomlinson based his decision on statements made by Andrew Powell, Mr Whitehouse and Mr Myrie. Mr Powell gave an account of what he was told by Mr Whithouse and a written statement was not provided.[24]Mr Davies had provided a statement [68] alleging that the claimant had used a racial slur.[25]After the interview, a statement was taken from Steph Robinson [67].[26]On 12/09/23 Mr Whitehouse was interviewed [68-72] by Jon Davies (Manager). Mr Whitehouse said that he and the claimant had a conversation about the smell of deep heat and the claimant made a comment saying “it's probably that N word behind us”. He then went and told Mr Myrie. Mr Whitehouse was asked why Mr Myrie claimed that Mr Whitehouse told him about someone telling him that he smells of BO and referring to him as a “black monkey N word”. Mr Whitehouse confirmed that he was 100% sure that he heard this.[27]Mr Tomlinson believed that whilst there were inconsistencies with his previous statement regarding the words BO and monkey, the interview was consistent with the statement regarding the use of the N word. In his oral evidence, Mr Tomlinson confirmed that he concluded that there had been 2 separate incidents where the N word had been used by the claimant. The first when the claimant spoke to Mr Whithouse and on the second occasion when it was overheard by Mr Davies.[28]On 19/09/23 the claimant was invited to a disciplinary hearing. The letter did not precisely and clearly state which incident was being investigated, whether it was the first, second or both.[29]On 21/09/23 Chloe Ball (Operations Manager), held a disciplinary hearing, and the claimant gave an account consistent with his previous interview and statement [80]. He also showed Miss Ball his search history where he googled the N word to find out what it meant as he was not aware of this word.[30]Miss Ball reviewed the evidence and believed that Mr Whitehouse said he was 100% sure that they talked about BO and that the claimant referred to Case No: 1300536/2024 Mr Myrie as a black monkey n*****. Miss Ball did not investigate the inconsistencies in relation to the prior conversation about BO and deep heat as she did not believe that it was relevant to the issue. She focused her investigation only on the use of the racial slur.[31]Miss Ball concluded that the claimant used the N word during the discussion with Mr Whitehouse and made a finding that the word monkey was not used by the claimant, due to the inconsistent statements by Mr Whitehouse on this issue. Miss Ball concluded that there was no reason not to believe Mr Whitehouse and there was no reason why he would make up the allegation as Mr Whitehouse had said that he did not have any relationship with the claimant. Miss Ball did not speak to Mr Whitehouse directly about his version of events.[32]Miss Ball gave evidence that she could not establish whether a racial slur was directed at Mr Myrie during the second incident as Mr Davies was the only witness and Mr Myrie did not hear a comment being directed at himself.[33]On 22 September 2023, at the reconvened disciplinary hearing Miss Ball dismissed the claimant stating “based on the statements you are dismissed for gross misconduct” [93]. She did not explain which incident amounted to gross misconduct, whether it was the first, second or both incidents that amounted to gross misconduct. In her oral evidence, Miss Ball stated that she made a find of gross misconduct based in the first incident where a conversation took place between the claimant and Mr Whitehouse.[34]The dismissal letter also did not state specifically which incident was found to amount gross misconduct [96].[35]An appeal was lodged against the decision to dismiss [97] and an invitation was sent to the claimant to attend an appeal hearing.[36]The appeal hearing was conducted by Daniel Smith (General Manager). Mr Smith refers to the appeal of an “allegation” rather than “allegations” when explaining the purpose of the hearing. He does not detail which allegation he is referring to when explaining the purpose of the hearing [99]. Mr Smith approached the hearing as a fresh hearing of the evidence to establish the facts in relation to both allegations of the use of the N word as alleged by Mr Whitehouse and Mr Davies. The claimant was not informed of this.[37]Mr Smith interviewed Mr Davies, checked for CCTV and interrogated the MDS system. I find there was no CCTV footage of the incidents and the MDS System had not yet collected any data on Mr Davies at the start of the day on 11 September 2023.[38]Mr Smith believed that Mr Whitehouse, rather than giving an inconsistent account, added to his initial statement in respect of the word monkey being used. Mr Smith concluded that there was reasonable ground to believe that the claimant had called Mr Myrie the N word in both the first incident and in the second incident. Mr Smith upheld the decision to dismiss on both grounds. Case No: 1300536/2024[39]The letter confirming the outcome of the appeal did not state the findings made by Mr Smith or the reasons, simply stating that the decision to dismiss stands [105].[40]The investigation was not approached in an even-handed way and it was reasonable to make further inquiries where there was inconsistent evidence and where the claimant had put forward a motive for Mr Whitehouse to lie.[41]The allegation that the claimant used the N word, is not proved.[42]The dismissal was not within the range of reasonable responses.[43]The claimant was unfairly dismissed and the decision to dismiss was not within the range of reasonable responses.[44]It is not just and equitable to reduce basic or compensatory award.[45]I find that there is no proven conduct where the claimants’ actions can be considered blameworthy or unreasonable.[46]The claimant is entitled to notice pay. The Law – Unfair Dismissal[47]Section 94 of the Employment Rights Act 1996 (ERA) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111 ERA. The employer must first show that the claimant was dismissed by the employer under section 95 ERA.[48]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the employer shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[49]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (per Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Case No: 1300536/2024 Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23 , and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[50]Elias LJ in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 commented that an employer, faced with conflicting evidence, does not always have to decide whether it "believes" or "disbelieves" one person over another. It could reach a decision that there is merely a difference of perception, and that both parties are telling the truth as they see it. Alternatively, it could find that the conflict is such that it cannot be resolved. In the latter case, the allegations will not be proved, and the accused employee will have the benefit of doubt, without the employer necessarily having to imply that the other witnesses were lying.[51]Per A v B [2003] IRLR 405O, when assessing the reasonableness of an investigation, tribunals should take into account the gravity of the consequences on the employee; where these are serious, the investigator must be "even-handed" in looking for evidence in the accused's favour as well as evidence against them.[52]When considering the fairness of a dismissal, the Tribunal must consider the process as a whole (per Taylor v OCS Group Ltd [2006] IRLR 613, CA). A sufficiently thorough re-hearing on appeal can cure earlier shortcomings, (see Adeshina v St George’s University Hospitals NHS Foundation Trust and Ors UKEAT/0293/14/RN).[53]An employer should consider any mitigating features which might justify a lesser sanction, and the ACAS Guidance is also useful in this respect; factors such as the employer's disciplinary rules, the penalty imposed in similar previous cases, the employee's disciplinary record, experience and length of service are all relevant. An employer is entitled to take into account both the actual impact and/or the potential impact of the conduct alleged upon its business. The Law- Remedy[54]Compensation for unfair dismissal is dealt with in sections 118 to 126 inclusive of the ERA. Potential reductions to the basic award are dealt with in section 122. Section 122(2) provides: "Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce the amount accordingly."[55]The compensatory award is dealt with in section 123. Under section 123(1) "the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer". In order for a deduction to have been made under these sections the conduct needs to have been culpable or blameworthy in the sense that it was foolish, perverse or unreasonable. It did not have to have been in breach of contract or tortious (Nelson-v-BBC [1980] ICR 110). Case No: 1300536/2024[56]Potential reductions to the compensatory award are dealt with in section 123. Section 123(6) provides: "where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."[57]The decision in Polkey-v-AE Dayton Services [1988] ICR 142 introduced an approach which requires a tribunal to reduce compensation if it finds that there was a possibility that the employee would still have been dismissed even if a fair procedure had been adopted. Compensation can be reduced to reflect the percentage chance of that possibility. Alternatively, a tribunal might conclude that a fair of procedure would have delayed the dismissal, in which case compensation can be tailored to reflect the likely delay. A tribunal had to consider whether a fair procedure would have made a difference, but also what that difference might have been, if any (Singh-v Glass Express Midlands Ltd UKEAT/0071/18/DM).[58]It is for the employer to adduce relevant evidence on this issue, although a tribunal should have regards to any relevant evidence when making the assessment. A degree of uncertainty is inevitable, but there may well be circumstances when the nature of the evidence is such as to make a prediction so unreliable that it is unsafe to attempt to reconstruct what might have happened had a fair procedure been used. However, a tribunal should not be reluctant to undertake an examination of a Polkey issue simply because it involves some degree of speculation (Software 2000 Ltd.-v Andrews [2007] ICR 825 and Contract Bottling Ltd-v-Cave [2014] UKEAT/0100/14).[59]Where a tribunal finds, in a conduct case, that no reasonable employer could have fairly dismissed the claimant, there is no need to go through a detailed analysis of the Software 2000 process before ruling out a Polkey deduction (Jagex Ltd v McCambridge UKEAT/0041/19). In Jagex, the EAT found that it was inherent in the Tribunal's reasoning that following a fair procedure would not have made the dismissal fair, and this was sufficient to amount to the correct approach.
Conclusions
[60]In this case it is not in dispute that the respondent was an employee with more than 2 years qualifying service. It is also not in dispute that respondent dismissed the claimant, and that the claimant was dismissed for misconduct.[61]Misconduct is a potentially fair reason for dismissal under section 98(2) ERA. The respondent has satisfied the requirements of section 98(2) ERA.[62]I first considered whether the respondent held a genuine belief that the claimant was guilty of misconduct.[63]In his oral evidence, Mr Tomlinson stated that after he considered the statements collated during the investigation he formed a view that the claimant had used racial slurs on 2 occasions. He then passed the matter on for disciplinary procedures to commence. Case No: 1300536/2024[64]Miss Ball gave evidence that she reviewed the evidence gathered and after speaking to the claimant she concluded that he had used the racial slur in his conversation with Mr Whitehouse. Based on this, she made the decision to dismiss.[65]I am satisfied that both Mr Tomlinson and Miss Ball held a genuine belief that the claimant was guilty of misconduct. Miss Ball made the decision to dismiss, and it was made on the basis that she genuinely believed that the claimant had used the N word during his conversation with Mr Whithouse.[66]I considered whether the respondent held such genuine belief on reasonable grounds after carrying out a reasonable investigation.[67]The investigation involved gathering witness statements, interviewing the claimant on 4 occasions on 11 September 2023 [59], 12 September 2023 [73], 21 September 2023 [79] and 22 September 2023, and interviewing Mr Whitehouse on 1 occasion on 12 September 2023 [69].[68]Although evidence had been gathered, that evidence was not assessed in an even-handed way. Miss Ball, in her oral evidence, stated that she was investigating the first incident only and wanted to establish the facts in relation to the conversation that took place between the claimant and Mr Whitehouse. She did not investigate the second incident where Mr Davies alleged that he heard the claimant refer to Mr Myrie as the N Word as Mr Davies’ evidence had not been corroborated by Mr Myrie or the claimant.[69]Miss Ball accepted that there were discrepancies in Mr Whitehouse’s accounts, namely, that in his second account he alleged that the words “BO” and “monkey” were also used in addition to the racial slur, which he had not mentioned in his first statement. She stated that having considered Mr Whitehouse’s interview on 12 September 2023, she felt that Mr Whitehouse had offered sufficient clarification of his account and that he was 100% sure that the words “BO” and “black monkey n*****” had been used by the claimant.[70]Miss Ball gave evidence that she did not focus on the inconsistencies about the conversation prior to the alleged use of the racial slur as she did not believe it was relevant to the issue. Furthermore, she went on to say that her finding was only in relation to the use of the N word and the details of any conversation or context in which the comments were made, even though Mr Whitehouse had confirmed that the word “monkey” had been used. Therefore, Miss Ball accepted some parts of Mr Whitehouse’s evidence and not other parts. When questioned about why she accepted Mr Whitehouse's evidence in part she stated that there was no reason to believe that Mr Whitehouse would make up the allegation as he did not have any issues with the claimant.[71]However, this was not the account given by the claimant. In his interview on 11 September 2023, the claimant stated that he felt that Mr Whitehouse and the others were jealous of him as they always asked him about his start times and working hours [60]. He mentioned this again in his interview with Mr Tomlinson on 12 September 2023 [75]. During the disciplinary meeting with Miss Ball on 19 September, the claimant reiterated that he was being Case No: 1300536/2024 harassed about his hours [79]. Whilst the claimant did not have an issue with Mr Whitehouse, it appears that there is a possibility Mr Whitehouse may have had an issue with the claimant. This ought to have been investigated. Particularly in the context about how the allegation came to light.[72]Mr Whitehouse told a number of people about the alleged comment before he left for the day. Mr Myrie, in his statement, contends that after Mr Whitehouse had informed him the claimant’s alleged conduct, he was approached by 3 or 4 people commenting about the same incident. Mr Whitehouse accepts that he did not raise it with a manager, and although he said Mr Myrie had a right to know, no questions were put to him about why he told colleagues without telling a manager, before he left for his shift. This conduct can reasonably be viewed as hostile as it would have the effect of damaging the claimant’s reputation amongst his colleagues.[73]Further, Mr Davies, in his interview stated that the claimant’s attitude stinks and that he did not get on with colleagues. All the witnesses accepted that the account given by the claimant in his statement and hearings was consistent, furthermore he had stated on three occasions that he had felt jealousy from Mr Whitehouse and his colleagues, and he produced evidence that he did not know what the N word meant and produced a screenshot of his search history to Miss Ball. Despite this Mr Whithouse’s inconsistent account was accepted over the claimant’s consistent account. This was a serious allegation made against the claimant where the consequences were likely to be grave. In the absence of any independent evidence, the respondent had a duty to approach the investigation in a fair way and assess the evidence in a balanced way.[74]When the employer must make a decision on conflicting evidence, it may be tempting to conclude that a witness has no reason to lie, and therefore must be telling the truth. An employer may therefore be inclined to find against the accused employee, because a finding in their favour could suggest that they think the witness is lying and therefore send "the wrong message". However, the Court of Appeal cautioned against this in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 stating that the respondent could find that a conflict is such that it cannot be resolved. In this instance the respondent had, on the one side, an employee that had given inconsistent accounts by what had been said by the claimant and told a number of people information that is likely to cause reputational damage and on the other had there is evidence an employee that had been working for the respondent for almost 5 years, with a clean disciplinary record, who gave consistent accounts on each occasion and explained why Mr Whithouse might make the allegation. There is no independence witness evidence to corroborate what either employee said but if Mr Whitehouse was to be believed there would be and were serious consequences for the claimant. This is such a case where a reasonable employer, in these circumstances, would conclude that the conflict cannot be resolved or find the allegation not proved.[75]I find that the investigation was not approached in a fair and balanced manner. Parts of Mr Whithouse’s evidence was accepted simply because it was considered that he had no reason to lie despite there being inconsistencies in his account about the words allegedly used by the Case No: 1300536/2024 claimant. Mr Whitehouse was not challenged about the claimant’s assertion that Mr Whithouse was jealous and harassed the claimant about his hours. Miss Ball made her decision without speaking to Mr Whitehouse. The claimant asserted that he did not know what the N word meant and had to look it up. This was corroborated by his search history, which was shown to Miss Ball, but it is a factor that appears that was not weighed in the balance by her, as she focused on the use of the N word only when the claimant was speaking to Mr Whitehouse. Further, the claimant had been an employee of the respondent for almost 5 years, had a clean disciplinary record and was often called on to assist and work overtime due to his good performance. Miss Ball’s only explanation of why she did not accept the claimant’s account was that she did not feel there was any reason why Mr Whitehouse would make up the allegation.[76]Miss Ball could have spoken to Mr Whitehouse directly without difficulty and challenged him about his feelings and conduct towards the claimant to establish a motive. She could also have used the opportunity to challenge him about his inconsistent accounts rather than accepting select parts of his account that were detrimental to the claimant. This would have been important as the claimant was at risk of losing his reputation, job and potentially the prospects of securing a job in the future. This is relevant to the question of reasonableness of an investigation. Miss Ball did not notify the claimant of her findings in relation to the incidents and did not inform his as to which incident amounted to gross misconduct. Further, she did not inform the claimant of the reasons for her findings, which based on the oral evidence, appears to be that Mr Whitehouse had sufficiently clarified his account and did not have a reason to lie. For these reasons, I find that the respondent did not carry out a reasonable investigation.[77]The appeal was an opportunity to rectify any deficiencies in the investigation.[78]Mr Smith, in his evidence, stated that he approached the appeal as a fresh rehearing of all the allegations. Despite this, he did not inform the claimant that he was re-opening the investigation into the allegation made by Mr Davies. The claimant, when attending the appeal hearing, would not have been aware as to which incident formed the basis of the gross misconduct, the reasons for any finding, which incidents were being considered or why an investigation into a closed matter was being re-opened. This position would have been detrimental to the claimant and put him at a disadvantage when mounting his appeal.[79]Mr Smith accepted that there was some inconsistency in the evidence provided by Mr Whitehouse, however, he concentrated on the evidence in relation to the use of the N word only. He went through the investigation papers and formed his own view and opinion on the case. He decided to reopen the investigation into the second incident and decided to re- interview Mr Davies to try and clarify his account of what he heard during the initial confrontation between the claimant and Mr Myrie. Mr Smith gave evidence that he approached the interview with Mr Davies delicately as he wanted to obtain an absolute version of the truth, and he felt that in the interview Mr Davies confirmed, on three occasions, that the claimant used the N word directing it at Mr Myrie. Mr Smith accepted that neither Mr Myrie nor the claimant corroborated Mr Davies version of events and felt that it Case No: 1300536/2024 was a difficult investigation. Mr Smith went on to say that he did consider the relationship between Mr Davies and the claimant particularly as Mr Davies had made negative comments about the claimant's attitude and again commented that it was a difficult investigation with fairly limited information.[80]Mr Smith chose not to re-interview Mr. Whitehouse and put questions to him about his conduct towards the claimant. He stated that although there were discrepancies about some of the terminology used, Mr Whitehouse had given a consistent account about the use of the N word, which is what his investigation focused on. He made the decision to uphold the decision to dismiss on the basis that 2 people had heard the claimant use the N word directing at Mr Myrie, albeit on separate occasions.[81]I find that the investigation in relation to the appeal was also unfair as inconsistent information was relied upon in relation to the incident between the claimant and Mr Whitehouse without re-interviewing Mr Whitehouse. The motive for Mr Whitehouse making the allegations was not sufficiently investigated. The investigation into the allegation made by Mr Davies had been re-opened without informing the claimant and findings made despite evidence to the contrary from Mr Myrie himself. Further, it was accepted by Miss Ball and Mr Smith that the claimant’s account had remained consistent during the investigation and the appeal, and no reasons were not given for why he as not believed. The investigation and appeal were approached in an unbalanced way and for these reasons I find that the respondent’s belief that the claimant was guilty of misconduct was not held on reasonable grounds.[82]In considering, whether the decision to dismiss was within the range of reasonable responses and whether the respondent acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the claimant, I assessed the evidence to determine which factors the respondent considered when making the decision to dismiss.[83]When making the decision to dismiss the respondent was aware that the claimant had a clean disciplinary record, that he had been an employee longer than Mr Whitehouse and was a good performer that was asked to assist by working above and beyond his contractual hours. The respondent was also aware that the nature of the allegations was serious which were likely to cause reputational damage, and it chose to rely on inconsistent accounts given by Mr Whitehouse in relation to the first incident and an account that contradicted the account given by alleged victim, Mr Myrie, in relation to the second account. Further, motive for making the allegations was not sufficiently investigated in a case where it was simply accepted that Mr Whitehouse had no reason to lie. In addition, reasons have not been given for why the claimant’s account was not believed. Taken together, a reasonable employer would not have concluded that the claimant was guilty of gross misconduct and would not have dismissed the claimant in these circumstances. For these reasons, I find that the decision to dismiss was not within the range of reasonable responses.[84]I find that the claimant was unfairly dismissed by the respondent within section 98 of the Employment Rights Act 1996. The complaint of unfair dismissal is well founded. Case No: 1300536/2024
Remedy
[85]The claimant sought compensation, and the following issues were considered at the remedy hearing: 85.1. If there is a compensatory award, how much should it be? The Tribunal will decide:• What financial losses has the dismissal caused the claimant?• Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?• If not, for what period of loss should the claimant be compensated?• Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?• If so, should the claimant’s compensation be reduced? By how much?• Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?• Did the respondent or the claimant unreasonably fail to comply with it?• If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?• If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?• If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?• Does the statutory cap of fifty-two weeks’ pay or £105,707 apply? 81.2 What basic award is payable to the claimant, if any? 81.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[86]At the hearing, the claimant gave evidence, and the parties relied upon a bundle of evidence consisting of 165 pages. I also considered the claimant’s witness statement and the respondent’s counter schedule of loss.[87]The respondent did not rely on any witnesses to give evidence and was invited to make initial submissions prior to hearing evidence so that the claimant would be aware of the respondent’s position on the issues to be decided.[88]The respondent submitted that it was just and equitable to reduced both basic and compensatory award by 100% as the respondent contended that regardless of any procedural unfairness the claimant would have been dismissed in any event. The respondent argued that even if Mr Whithouse had been re-interviewed and additional meetings held the outcome would still have been the same because there was some evidence that he had used the N word. Case No: 1300536/2024[89]It was also submitted that the claimant's conduct contributed to the dismissal by reason of the fact that the claimant used the N word. On this basis the compensatory award should be reduced by 100%.[90]The respondent denied any breach of the ACAS Code of Practice. It was submitted that the claimant was informed of his rights and that the process with followed with transparency and without bias. The respondent submitted that there was clear communication, and all necessary information was provided to the claimant at appropriate stages. Further, its conduct throughout the process was reasonable and did not constitute harassment or bullying and argued no uplift should be applied.[91]The respondent submitted that the claimant had failed to mitigate his losses as whilst he had taken on agency work, he had not made sufficient efforts to secure a job that was a similar distance and of a similar pay to his employment with the respondent. The respondent further submitted that a considerable number of job roles within a reasonable distance of the claimant's address, similar salary and type of job were available and relied on pages 141-157 in the bundle. These demonstrated that there were hundreds of job opportunities for warehouse worker roles, within 25 miles of the claimant’s address, each month from October 2023 to September 2024. The respondent argued that the claimant failed to provide any evidence of applications for full time permanent roles from September 2023 up until August 2024[92]The claimant produced a 6-page witness statement and gave evidence. In his evidence the claimant stated that since his dismissal he had not claimed any benefits and had consistently looked for jobs offering similar pay and of a permanent nature. He also gave evidence that he had mitigated his losses by ensuring that he had remained in employment since dismissal, up to the remedy hearing, save for perhaps one month where he was out of work. He has been looking for jobs by signing up with a number of recruitment agencies and regularly making phone calls and sending messages to recruitment agents to inquire about job vacancies. He explained that often he was told that they will get back to him but then they did not. The claimant relied on evidence produced in the bundle including pages 158-165 which showed screenshots of messages and call logs where he has made contact with recruitment agencies. He also explained that he had not applied for jobs directly with employers as his understanding was that warehouses use agencies to recruit employees which start out as short term with the potential to turn into permanent employment.[93]In his evidence, the claimant stated that he had been under a tremendous amount of pressure and stress as he is responsible for supporting his family and paying a mortgage. This has meant that he has tried very hard to secure permanent employment but has only been able to secure temporary employment. His current employment is due to end in December 2024, and he is very worried about his future income. The claimant gave evidence that he was travelling 54 miles per day, 6 days per week for the 8 weeks between 08 September 2024 and the date of the remedy hearing.[94]The claimant withdrew his claim for holiday pay. Conclusions Case No: 1300536/2024
Conclusions
[95]The respondent did not rely on any evidence to support its position that the claimant would have been dismissed even if a fair procedure had been followed. In paragraphs 70-81 I have explained reasons for making findings that the investigation was not approached in an even-handed way, that it was reasonable to make further inquiries where there was inconsistent evidence and where claimant had put forward a motive for Mr Whitehouse to lie. I have also made a finding that in the circumstances, dismissal was not within the range of reasonable responses. In view of this, I find that it would not be just and equitable to reduce basic or compensatory award.[96]With regards to the contributory conduct, the respondent relies on conduct where it submits the claimant used the N word. This does not accord with my findings of facts. Per paragraphs 11-14, I found that Mr Whitehouse gave an unreliable account of his conversation with the claimant. I did not make a finding on whether the N word was used as there was an unfair investigation and the nature of the evidence is such that the conflict cannot be resolved. In these circumstances I have given the claimant the benefit of the doubt in accordance with the principles in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522. I find that there is no proven conduct where the claimants’ actions can be considered blameworthy or unreasonable. I therefore, make no reduction pursuant to section 123(6) of the ERA.[97]I have carefully considered the evidence in relation to the duty to mitigate losses and whether the claimant acted unreasonably in complying with this duty. I find the evidence of the claimant is reliable and compelling. Initially the claimant appealed the decision to dismiss and after dismissal made reasonable efforts to secure employment. This has been demonstrated not only by the evidence adduced in the bundle but also by the fact that the claimant was out of work for only short time over a period of 13 to 14 months. Furthermore, the claimant also travelled distances further than his previous employment in order to continue working. The claimant gave evidence that he made numerous applications through recruitment agencies as this is the primary method of recruitment for warehouse roles. Also, where he secured temporary employment, he made inquiries about becoming a permanent employee but, to date, has not been offered any permanent roles. For these, reasons I find that the claimant made genuine and sustained efforts to find employment and did not act unreasonably when mitigating his losses.[98]The application for legal costs was refused. The respondent was entitled to defend the proceedings and challenge the claims. There was no evidence to suggest unreasonable or vexatious conduct by the respondent when defending these proceedings.[99]The ACAS Code of Practice states that the person investigating should do their best to be fair and objective and not try to prove guilt but get balanced evidence from both sides. I have explained at paragraphs 70-81, why the investigation was not fair. The Code also states that at the meeting the employer should explain the complaint against the employee, to the employee and go through the evidence that has been gathered. This was not done during the disciplinary hearing or the appeal hearing. For these breaches I award a 10% uplift. Case No: 1300536/2024[100]The parties agreed that the claimant’s weekly net pay was £574.27 and gross pay was £764.74. It was also agreed that the respondent had 4 years continuous service, was aged 32 at the time of dismissal and was entitled to a basic award of £2,572.[101]The claimant was entitled to notice pay in the sum of £2297.08 (£574.27 x 4). This had the effect of moving the effective date of dismissal to 20 October 2023 for the purposes of calculating the compensatory award.[102]The parties agreed a net rate of loss of income per week figure of £192.41 and weekly pension loss of £44.16. There have been 54 weeks between the effective date of dismissal and the remedy hearing. The loss therefore amounts to £12774.78 ((192.41+44.16) x 54).[103]The claimant is awarded £500 for loss of statutory rights.[104]The claimant also sought future loss of earnings for 6 months. This was awarded as the claimant is yet to secure permanent employment for a similar wage. This amounted to £6150.82 ((192.41+44.16) x 26 weeks).[105]The claimant agreed to a rate per mile figure of 13p for the purposes of travel expenses incurred as a result of travelling further than respondent’s place of employment. It was agreed that the claimant had works 220 up to 08 September 2024 and was entitled to £746.25 (per counter schedule of loss). In addition, the claimant was travelling 54 miles per day, 6 days per week for the 8 weeks between 08 September 2024 and the date of the remedy hearing. This amounted to ((0.13p x 54 miles) x 48 days worked) £336.96 bringing the total travel expenses to £1083.21.[106]A 10% uplift was awarded for breach of ACAS Code of Practice. This amounted to £25086.48 (£2280.59+£22805.89).[107]A total of £27613.48 was awarded. (£2527 basic award + £25086.48 compensatory award).