Mr R Latchman v Department for Work and Pensions: 1302914/2018

EMPLOYMENT TRIBUNALS

Case No 1302914/2018

Between

Mr R LatchmanClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Mark Butler

Mr O Isaacs (instructed by Counsel) for claimant

Mr D Maxwell (instructed by Counsel) for respondent

Date 18 August 2021

JUDGMENT

The claims of automatic unfair dismissal pursuant to s.152 Trade Union Labour Relations (Consolidation) Act 1992, and victimisation pursuant to s.27 of the Equality Act 2010 are ill-founded and dismissed. The claim of unfair dismissal pursuant to Part X of the Employment Rights Act 1996 succeeds. This case will now be listed for a remedy hearing.

REASONS

[1]The claims in this case arise following the presentation of a claim form on 01 August 2018. The claimant brought complaints of unfair dismissal, wrongful dismissal, race discrimination and detriment/victimisation/automatic unfair dismissal by reason of trade union office or membership.

[2]The claim of race discrimination was withdrawn by the claimant by email dated 13 March 2019. I have not seen a dismissal judgment in relation to this withdrawal, and so for completion purposes we dismiss this part of the claim on withdrawal here.

[3]The claimant made an application to amend his claim on 22 April 2021, which was day 3 of this hearing, to include a claim for victimisation. This was following the evidence of Mr Jordan. This amendment application was granted having heard the submissions of both parties and having applied the balance of hardship and injustice test. Reasons for this decision were given on that day, and are not repeated here. The respondent was given permission to update their grounds of resistance in light of this decision.

[4]This case was initially listed for 8 days by Employment Judge Housego in a Telephone Case Management Hearing on 10 December 2018. However, this listing was reduced to 4 days when the matter came before Employment Judge Miller at a Preliminary Hearing on 01 June 2020. This listing was for the case to be heard on 20, 21, 22 and 23 April 2021.

[5]Unfortunately, the case was not completed within the four day listing. We had only just managed to complete the evidence, and even this required some late sittings by the tribunal. Having enquired as to dates of availability, and having heard representations from both sides, the tribunal made the decision that it would receive written submissions in this case, and seek to deliberate shortly after the date laid down to exchange and sent to tribunal those written submissions. Written submissions were directed to be exchanged with one another and sent to tribunal by 14 May 2021, with a right of reply on the law by 28 May 2021. The tribunal was listed for deliberations on 02 June 2021, which did not yield a decision. The tribunal was listed for deliberations again on 29 July 2021. This is the decision that came out of those two days of deliberations. We apologise to the parties for the delay in getting this decision to them.

Introduction

[6]We were assisted in this case by a bundle that contained some 730 pages and a supplementary bundle that contained 110 pages.

[7]There were also 14 pages of additional relevant documents that were disclosed to the tribunal on 22 April 2021. Having heard submissions from Counsel for both sides, the tribunal made the decision to allow these documents in. Although we do make criticism of the respondent for disclosing what appears to be relevant documents so late in the proceedings.

[8]The claimant gave evidence on his own behalf and called Mr Martin Cavanagh and Mr Sidharth Anard as a witness. Mr Cavanagh was the claimant’s PCS Union Representative. Mr Sidharth Anard was a colleague of the claimant, and had various roles alongside the claimant with the PCS Union, including being CoBranch Secretary.

[9]The respondent called the following witnesses:a. Mr Sonia Ghaleb, who acted as Investigating Officer tasked with investigating two allegations of misconduct made against the claimant.

b. Ms Judi Blacow, who acted as Decision Maker in relation to the two allegations of misconduct made against the claimant.

c. Mr Glenn Jordan, who acted as the Appeal Manager in the claimant’s appeal against the decision to dismiss him from his employment with the respondent.

[10]We thank both representative for the way that they presented their case in these proceedings. And for their persistence in ensuring that all of the evidence was heard in 4 days that were allocated. But further, for the concise written submissions we received in closing.

ISSUES

[11]The parties provided the tribunal with an agreed list of issues. These stood as the issues to be determined in this case (although following the amendment application on 22 April 2021, this was expanded to include a claim for victimisation, which is recorded below). The list of issues in this case was as follows:

[12]In terms of the victimisation claim, the specific wording of this was recorded as follows: The Claimant avers that Mr Jordan believed that the Claimant had done a protected act pursuant to s27(1) and (2) Equality Act 2010, namely that Mr Jordan believed that the Claimant had alleged that his line manager (reflects- I) had discriminated against him (the Claimant) on the grounds of race. The Claimant avers that he was victimised and subjected to a detriment contrary to s27 and s39(4) Equality Act 2010 in that his appeal against dismissal was dismissed because he had done a protected act. CLOSING SUBMISSIONS

[13]The tribunal were assisted by both a written opening note presented on behalf of both the claimant and the respondent, as well as detailed written closing submissions presented on behalf of both parties. We do not repeat those submissions here, however, note that all four documents have been considered and taken into account when reaching this decision.

LAW

[14]The tribunal was taken to a range of case law in the closing submissions of Mr Isaacs and Mr Maxwell. Each of which were relevant for the issues that we had to determine, and as such have been considered when reaching this decision. We set out the relevant law below. (i) Automatic Unfair Dismissal

[15]Protection from dismissal on trade union grounds is contained at section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which provides that:(1) For purposes of [Part X of the Employment Rights Act 1996] (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a) was, or proposed to become, a member of an independent trade union, . . . (b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, . . . […]

(2) In subsection [(1)]“an appropriate time” means— (a) a time outside the employee’s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union [or (as the case may be) make use of trade union services]; and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

[16]Mr Isaacs submitted the following relevant case law:a. Royal Mail Group v Jhuti

(2020) IRLR 129

, with particular reference to the approach to be adopted where a manager has some responsibility for the conduct of the disciplinary inquiry. With a need on the tribunal, in certain circumstances, to look beyond the reasons given by the appointed decision-maker. And where the real decision is concealed from the decision-maker, the Supreme Court at paragraph 20 gave the following guidance: “If a person in the hierarchy of responsibility above the employee (here … Ms Jhuti's line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court's duty to penetrate through the invention rather than to allow it also to infect its own determination. If limited to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person's state of mind rather than that of the deceived decision-maker.''

b. Brennan v. Ellward (Lancs) Ltd

[1976] IRLR 378

, where the EAT held that the critical question is whether using common sense, the acts in question constitute the activities of an independent trade union.

c. Port of London Authority v Payne

[1993] ICR 30

, with the determination to be judged against an objective standard.

d. Dixon v West Ella Developments

(1978) ICR 856

, which held that the word “union activity” must not be narrowly interpreted, although there is a need for the activity in question to have some connection with the Union.

e. Lyon and Anor v St James Press Ltd

(1976) ICR 413

, where the EAT decided that Shop Stewards and other union officials may lose protecton where they are found to have acted wholly unreasonably or malisciously in carrying out their functions, whilst stating that union activity should not operate ‘as a cloak or an excuse for conduct which ordinarily justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate. Wholly unreasonable, and extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair’.

f. Bass Taverns v Burgess

(1995) IRLR 596

, where the Court of Appeal considered that a Union official had been unfairly (constructively) dismissed when he resigned after being demoted for having made derogatory remarks in a union related presentation which his employer had consented to. However Lord Justice Pill stated that ‘I am far from saying that contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term “trade union activities”’.

g. British Gypsum Lyd v Thompson

UKEAT/0115/11

, where the EAT held that shop steward was not acting on a “frolic of his own” when he voiced personal views rather than views of members.

h. Morris v Metrolink RATP Dev Ltd

(2019) ICR 90

. When considering whether an employee loses protection under s.152 because of doing something ill-judged or unreasonable, the issue is whether the behaviour is genuinely separabl. In this respect Underhill LJ at paragraph 19 states: “In my view the principle underlying these cases is – as so often – most clearly stated by Phillips J. If Slade J in Mihaj intended to suggest that there was some difference between his approach in Lyon and that taken by this Court in Bass Taverns I would respectfully disagree. At the risk of simply repeating less succinctly what Phillips J says in the passages which I have quoted, there will be cases where it is right to treat a dismissal for things done or said by an employee in the course of trade union activities as falling outside the terms of section 152 (1), because the things in question can fairly be regarded as a distinct reason for the dismissal notwithstanding the context in which they occurred; and his reference to acts which are "wholly unreasonable, extraneous or malicious " seems to me to capture the flavour of the distinction. That precise phraseology should not be treated as definitive (any more than Slade J's formulation in Mihaj); but the point which it encapsulates is that in such a case it can fairly be said that it is not the trade union activities themselves which are the (principal) reason for the dismissal but some feature of them which is genuinely separable. Azam is a good illustration of such a case: the employee's deliberate breach of confidence could fairly and sensibly be treated as a reason for dismissal distinct from the fact that it occurred in the context of trade union activities.”

[17]Mr Maxwell included the following legal submissions:a. The burden of proof in cases where an employee with the required continuity of service to bring an ordinary unfair dismissal claim alleges they were dismissed for an unlawful reason was addressed by the Court of Appeal in Maund v Penwith District Council

[1984] ICR 143

. Per Griffiths LJ: “If an employer produces evidence to the tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubt upon the employer's reason. The graver the allegation, the heavier will be the burden. Allegations of fraud or malice should not be lightly cast about without evidence to support them. But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufﬁcient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.”

b. Submissions on Morris v Metrolink RATP Dev Ltd

(2019) ICR 90

, noted above, were also made. (ii) Ordinary Unfair Dismissal

Findings of fact

[18]The burden of proof rests on the employer to establish that the claimant was dismissed for a potentially fair reason, that being conduct.

[19]The Court of Appeal in Abernethy v Mott

[1974] ICR 323

, per Cairns LJ, laid out the correct approach to identifying the reason for the dismissal (although this must now be read against Jhuti, see above): “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”

[20]Where the employer satisfies this burden in respect of establishing a potentially fair reason, the tribunal must then apply the statutory test contained within s.98(4) so as to consider whether the dismissal was fair or unfair, which is expressed in the following way: (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case

[21]Where the reason for dismissal is conduct the Tribunal will take into account the guidance of the EAT in BHS v Burchell

[1978] IRLR 379

and must be satisﬁed:a. that the respondent had a genuine belief that the Claimant was guilty of the misconduct;

b. that such belief was based on reasonable grounds;

c. that such belief was reached after a reasonable investigation.

[22]The test requires that the tribunal reviews the reasonableness of the employer’s decision, rather than substituting its own view. The question the tribunal must ask itself is whether the decision to dismiss the claimant fell within the band of reasonable responses: Iceland Frozen Foods v Jones

[1983] IRLR 439

EAT.

[23]According to the Court of Appeal in Sainsbury’s Supermarkets v Hitt

[2003] IRLR 23

, the range of reasonable responses test applies equally to the Burchell criteria as it does to whether the misconduct was sufficiently serious to justify dismissal. The more serious the allegations the more detailed the investigation: Salford NHS Trust v Roldan

(2010) ICR 1457

[24]The range of reasonable responses also applies to procedure. And part of this is considering the nature of the disciplinary charge: Strouthos v London Underground

(2004) EWCA Civ 402

[25]Where an appeal hearing is conducted then the Burchell criteria must be applied at that stage, in accordance with the decision of the House of Lords in West Midlands Co-operative Society v Tipton

[1986] IRLR 112

and the speech of Lord Bridge: “A dismissal is unfair if the employer unreasonably treats his real reason as a sufﬁcient reason to dismiss the employee, either when he makes his original decision to dismiss or when he maintains that decision at the conclusion of an internal appeal.”

[26]After an appeal, the question is whether the process as a whole was fair; see Taylor v OCS Group Limited

[2006] IRLR 613

CA, per Smith LJ: “46. […] In our view, it would be quite inappropriate for an ET to attempt such categorisation. What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair. 47. […] The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that ETs will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ETs realise that their task is to apply the statutory test. In doing that, they 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 and subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but 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.”

[27]Mr Isaacs also took the tribunal to the following case law:a. Uddin v LB Ealing EAT 0165/19, where it was submitted that the principles of Jhuti applied equally to the reasonableness of the dismissal as they did to the reason itself.

b. Hill v Great Tey Primary School Governors

(2013) ICR 691

, where it was submitted that as the claim was brought against a public body, the tribunal has to weigh the impact of the dismissal on the Claimant’s Convention rights. In every case the Tribunal must come its own view as to whether the imposition of the sanction of dismissal involved a disproportionate and unjustified interference with Claimant’s convention rights so as to take dismissal outside the range of reasonable responses. In weighing up this impact, MR Isaacs submitted that the ET must consider

(a) the aim which the restriction sought to serve and

(b) satisfy itself that the restriction imposed in the light of that aim was one prescribed by law and

(c) to consider if the restriction was one which was “necessary in a democratic society.” That involves considering whether the measure was appropriate to the legitimate aim, and whether the interference to the exercise of the right was proportionate to the importance of the particular aim it sought to serve.

c. Sandwell & West Birmingham Hospitals NHS Trust v Westwood

UKEAT/0032/09

, with particular reference to the following paragraphs: “109. …Assuming that is a breach of Trust policy, it still remains to be asked – how serious a breach is that? Is it so serious that it amounts to gross misconduct? In our judgment that is not a question always confined simply to the reasonableness of the employer's belief. We think two things need to be distinguished. Firstly the conduct alleged must be capable of amounting to gross misconduct. Secondly the employer must have a reasonable belief that the employee has committed such misconduct. 110. … What is at issue is the character of the act. The character of the misconduct should not be determined solely by, or confined to, the employer's own analysis, subject only to reasonableness. In our judgment the question as to what is gross misconduct must be a mixed question of law and fact and that will be so when the question falls to be considered in the context of the reasonableness of the sanction in unfair dismissal or in the context of breach of contract. What then is the direction as to law that the employer should give itself and the employment tribunal apply when considering the employer's decision making? 113. … we think that the Employment Tribunal was quite correct to direct itself at paragraph 27.1.4(b) (see page 18 of the bundle) that "gross misconduct" involves either deliberate wrongdoing or gross negligence.”

d. Brito-Babapulle v Ealing Hospital NHS Trust

(2013) IRLR 854

, which is authority for a finding of gross misconduct not automatically justifying that a dismissal was within the range of reasonable responses. (iii) Victimisation

[28]Protection from victimisation is provided for in section 27 of the Equality Act 2010 (EqA). With a protected act for the purposes of victimisation defined within section 27(2) EqA: " Each of the following is a protected act:(a) bringing proceedings under this Act;

(b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. "

[29]Section 27(3) EqA provides that making a false allegation will not be protected if it is done in ‘bad faith’, with guidance on the issue provided by the EAT in Saad v Southampton University Hospitals NHS Trust

(2019) ICR 311

[30]The crucial question in victimisation complaints often relates to causation: was any detriment because of the protected act? Importantly, in Nagarajan v London Regional Transport

1999 ICR 877

, it was held that if the protected act has a “significant influence” on the employer’s decision-making, discrimination will have been proved.

[31]The question of separability also applies to victimisation complaints. In that an individual may lose protection from victimisation under the EqA if the detriment is not inflicted because they carried out a protected act but because of the manner in which they have carried it out. In this regard both Mr Isaacs and Mr Maxwell made legal submissions on the case of Martin v Devonshires Solicitors

[2011] ICR 352

EAT, whilst Mr Isaacs also brought the case of Gillingham Football club Ltd v McCammon EAT 0560/12 to the attention of the tribunal.

[32]Useful guidance on the issue of separability was provided by Underhill P (as he then was) in the Martin case: “22. We prefer to approach the question ﬁrst as one of principle, and without reference to the complex case law which has developed in this area. The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the managing director at home at 3 am. In such cases it is neither artiﬁcial nor contrary to the policy of the anti-victimisation provisions for the employer to say "I am taking action against you not because you have complained of discrimination but because of the way in which you did it". Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint. (What is essentially this distinction has been recognised in principle–though rejected on the facts–in two appeals involving the parallel case of claims by employees disciplined for taking part in trade union activities: see Lyon v St James Press Ltd

[1976] ICR 413

("wholly unreasonable, extraneous or malicious acts": see per Phillips J at p 419C—D) and Bass Taverns Ltd v Burgess

[1995] IRLR 596

.) Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to "ordinary" unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle.” (iv) Wrongful dismissal

[33]The burden rests on the employer to establish that it was entitled to dismiss the claimant without notice. Mr Isaacs submitted the following two useful cases:a. Neary v Dean of Westminster

(1999) IRLR 288

, with the submission that the conduct must so undermine the trust and confidence that the employer must no longer be required to retain the employee; and

b. Sandwell & West Birmingham Hospitals NHS Trust v Westwood

UKEAT/0032/09

: The employer would need to establish either deliberate wrongdoing or “gross negligence.” FINDINGS OF FACT We make the following findings of fact based on the balance of probability from the evidence we have read, seen, and heard. Where there is reference to certain aspects of the evidence that have assisted us in making our findings of fact this is not indicative that no other evidence has been considered. Our findings were based on all of the evidence and these are merely indicators of some of the evidence considered in order to try to assist the parties understand why we made the findings that we did. We do not make findings in relation to all matters in dispute but only on matters that we consider relevant to deciding on the issues currently before us. (i) General Findings

FINDINGS OF FACT

[34]In or around 23 December 2016, the claimant submitted a grievance of harassment, discrimination and bullying against Mr Cornfield (pp.88(i)-88(ii)). This concerned a number of issues that took place in or around 06 December 2016. This included that:a. He felt that Mr Cornfield was subjecting him to discrimination because of his trade union activities

b. That Mr Cornfield raised a complaint to the HEO concerning events around this date, which the claimant describes as a fabrication to ty and get him into trouble

c. That these events have made him feel ‘extremely stressed out and uncomfortable in the classroom with him sitting directly behind’ the claimant.

[35]Between 23 December 2016 and 20 January 2017, the claimant contacted Mr Stuart Hayden on up to 3 separate occasions to chase up a response into the grievance that he had raised (see p.89).

[36]The claimant withdrew his grievance against Mr Cornfield in February 2017. This is described as a reluctant withdrawal by the claimant. This withdrawal was not conditional on any further actions (see p.109).

[37]The respondent applied various policies/guidance in place which is to be applied to and for its workforce. The claimant was aware that these policies, and their principles contained within each document respectively, applied to him during his employment. The following parts of these policies/guidance documents relevant to matters in this case, that applied to the claimant and/or the investigation concerning him, are as follows:a. The Grievance Policy (p.414), which states that:

b. How to: Assess the level of misconduct and decide a discipline penalty, which states that:

c. And in that same document, the respondent provides examples of penalties for misconduct (p.430). This is against different grades of seriousness of offence. i. The respondent describes minor misconduct (pp.430-431) as being ‘An isolated example of misconduct which falls short of the standards expected. First offence and minor in nature’. Examples provided include being rude to colleagues. An informal discussion is recorded as the possible outcome for such incidents. ii. The respondent provides for more serious minor misconduct. The examples provided include ‘Minor breaches of the Civil Service Code or Standards of Behaviour such as inappropriate behaviour on social media sites or in public where the department can be identified’ and ‘Short duration of unauthorised absence’. The normal penalty is describes as being a First Written Warning. iii. The respondent describes serious misconduct (p.432) as being either being repeated minor offences of significant breaches of the standards required. Examples provided include ‘Abuse of sick leave provisions’ and ‘offensive personal behaviour, for example, abuse of a colleague (verbally or by email or social media)’. The normal penalty is described as being a first written warning, unless such a warning has already been given. iv. The respondent describes gross misconduct as being serious enough to destroy the working relationship between the employee and employer and the likely sanction is dismissal. The examples of this conduct provided by the respondent include ‘…more serious cases of bullying, harassment and discrimination’, ‘working without permission for another employer while on sick leave’, ‘…significant breach of the Civil Service Code or Standards of Behaviour policy’ and ‘very offensive behaviour’.

d. HR Decision Maker’s Guide (pp.437-445). Which includes the following:

e. Annual leave policy (pp.455-472). This included the following: … … (at p.468)

f. Sick Leave Procedures for Managers (pp.473-487), which provides guidance for managers where an employee becomes ill. This includes the following:

g. Discipline procedure (pp.504-515, which includes:

h. Standards of Behaviour Procedures (pp.518-539), which includes the following:

i. Standards of Behaviour Policy (pp.540-545), which includes the following:

[38]The purpose behind the approach adopted in the annual leave policy, where annual leave is taken/requested during a period of sick, is to ensure that either the employee in question does not engage in an activity which may retard their recovery, or, to ensure that they are not engaging in an activity which would contradict their leave for sickness reasons (that is to avoid questions over why they could engage in one activity but remained too ill to work). To ensure that this policy achieved the intended outcome, it was applied broadly to include any work-related activities, rather than occupations or work in the narrow sense.

[39]The claimant misunderstood the annual leave policy, and did not consider that this required him to request leave whilst on sick leave, for attendance at a trade union conference, which does not fall under the term occupation in the narrow sense. This was a reasonable misunderstanding on the part of the claimant. Mr Jordan appeared to accept this under cross-examination.

[40]Ms Ghaleb, Ms Blacow and Mr Jordan were all supported by Human Resources throughout the disciplinary and dismissal process. However, for the avoidance of doubt, this was in the form of advice and guidance, rather than mandatory direction. Each of these three individuals reached decisions independently, having considered the advice given to them from Human Resources. (ii) The two allegations

[41]The claimant did not request annual leave from Mr Hayden before he went on sick leave in April 2017.

[42]The claimant commenced a period of sick leave in April 2017.

[43]The respondent does not treat attendance at Trade Union Conferences as work. Nor is it treated as an occupation or as voluntary work.

[44]The respondent does not allow workers to attend such conferences in working time. In order to attend a trade union conference, an individual ordinarily takes annual leave to enable them to attend.

[45]Between 22 May 2017 and 25 May 2017, the claimant attended a Trade Union Conference.

Conclusions

[46]On or around 28 June 2017, Sonia Ghaleb agreed to investigate the claimant in relation to conference attendance. (p.94). The reason for the investigation was that the claimant allegedly attended the PCS Conference in works time whilst on long term absence without advising/discussing with his line manager, applying for annual leave or other time off. The level of disciplinary action being considered was recorded as gross misconduct (see pp 93 and 95). Although within the email sent by Mary Chadwick on p.94 it is expressed that ‘…the allegation is also regarding his TU position’, we are satisfied that in the context of this email, and consistent with the email on p.93 and the record of a potential disciplinary case on p.95, and the witness evidence we read and heard, this is referring to the context of his attendance, being a TU conference which the claimant attended in his position as co-chair of the branch, rather than being the reason for any action.

[47]The fact that it was attendance at a trade union conference had no bearing on the decision to investigate the claimant.

[48]Mary Chadwick advised Ms Ghaleb that this matter should be investigated as gross misconduct (p.93). Ms Gahleb did not consider that this was a matter that should have been investigated at the level of gross misconduct, although she did investigate it at this level.

[49]On 05 July 2017, Ms Ghaleb further discussed the matter with a member of HR called David. Ms Ghaleb was given the following advice:

[50]As part of the same email, David from HR also gave advice in terms of the level of the offence:

[51]On 16 July 2017, Ms Ghaleb wrote to the claimant to inform him that she was investigating him following an allegation that he had attended the PCS conference in works time whilst on long term absence. And that he did so without advising/discussing with his line manager, applying for annual leave or other time off. And that this was being treated as gross misconduct. The investigation process was explained to the claimant in that letter. There was no expression or suggestion in this letter to the effect that the claimant’s failure to follow the proper procedures had led to a breakdown of trust and confidence between the claimant and the respondent (pp.100-101).

[52]On 24 July 2017, the claimant sent an email to a number of different recipients, with the subject matter as ‘Craig Cornfield- Co Option’. The claimant made an error in who he sent this email to. Which resulted in the claimant sending this email to two individuals who were not members of the union. The claimant was careless in typing in names to whom the email would be sent, especially with common names such as ‘John Smith’, simply assuming that it would be sent to the correct person. The claimant was at fault, which led the email being sent to a wider distribution list than intended.

[53]The email contained the claimant’s views of Mr Cornfield, and in particular he expresses that:a. I took out a grievance against [Mr Cornfield] in December 2016 for him trying to bully me by stopping me from completing union activities during 2012 training. His manager Stuart Hayden refused to investigate the grievance I had submitted…

b. … has applied to join the BEC has just 6 months ago attempted to bully me because I was doing my TU duties

c. Hence I find it morally indefensible that a bully like [Mr Cornfield] be allowed to join the BEC.

d. By allowing him to join we would be condoning his deplorable and morally offensive behaviour rather than condemning it. By allowing him to join we would be giving management the green light and telling them its ok for them to harass and intimidate our reps as we will still be happy for the bullies to join our BEC.

e. I feel that the Branch are sending a message to management that if a nonethnic manager bullies or intimidates a black or ethnic minority rep or Branch Official, then the Branch are willing to accept this.

[54]The email was sent from the claimant’s personal computer, and did not include a disclaimer or confidentiality warning.

[55]Any email sent by an employee of the respondent, including the claimant at the time, into the respondent’s network is then subject to the respondent’s policies and rules (referenced above).

[56]This email was reported to management by a third party. (iii) Investigations

[57]Ms Chadwick provided Ms Ghaleb, the investigating officer with Human Resources advice during the process. On 01 August 2017 at 08.36, Ms Chadwick sent an email to Ms Ghaleb in relation to the second complaint. This also expressed that Ms Chadwick had already spoken to Employee Relations who agreed that the contents of the email were unacceptable and that there were additional concerns that it had been sent outside of the Department. Ms Ghaleb was advised that the two incidents, attendance at the TU conference and the email, could be investigated together. It was further advised that the invitation to interview should reflect the higher level of misconduct (ie gross misconduct) and that this could be reduced/mitigated down depending on the evidence (p.113). Ms Gahelb followed this advice.

[58]On 01 August 2017 at 18.06, Ms Chadwick emailed Ms Ghaleb and suggested to her that she should take a statement from Mr Haydyn on whether the claimant had asked for and was granted leave for conference attendance, before he left the employ of the respondent. In addition, Ms Chadwick inserted part of the Policy that refers to ‘Working whilst on Sick Leave’. Before asking the question as to whether conference attendance could be construed as ‘voluntary’ within that policy (see p.122).

[59]On 02 August 2017, as part of her investigations into the claimant’s attendance at the TU conferenece, Ms Ghaleb held an informal meeting with Mr Haydyn. Mr Haydyn in that meeting confirmed that the claimant had not requested annual leave to attend the TU conference the week commencing 22 May 2017. There was no ambiguity in the response given by Mr Haydyn (p.124). The tribunal accepted Ms Ghaleb’s evidence on this matter. And this is consistent with the holiday leave records, and that the claimant later sought retrospective leave for the dates in question (see below). Further, it would have been expected that the claimant would have followed up any such oral request with a written confirmation; there is no such written confirmation.

[60]After having returned to work in August 2017, the claimant had his leave for the week commencing 22 May 2017 retrospectively approved by his line manager. (p.92). However, the claimant did not inform his line manager that the status of his leave for that period was subject to a disciplinary investigation.

[61]Despite having a policy to provide guidance at to when suspension can be considered (seep.506), which includes for circumstances where there is an alleged serious breakdown in the relationship between the employee and the department, the respondent at no point decided to suspend the claimant.

[62]On 23 August 2017, Ms Ghaleb wrote a letter to the claimant (see pp.139-140). This informed the claimant that she was now investigating two allegations: first, the claimant’s attendance at the PCS conference during the week commencing 22 May 2017. And, secondly, the email sent by the claimant on the 24 July 2017. In relation to the email it was explained it: No further detail in relation to the email was provided to the claimant at this point, including what aspects of the email were defamatory or unauthorised information. There was no suggestion in the letter that the claimant’s conduct had caused a breakdown of trust and confidence.

[63]It was further explained by Ms Ghaleb in this letter that the purpose of her investigation was to gather an present evidence in a report, which will include a decision on whether there was a case to answer.

[64]The investigatory meeting held by Ms Ghaleb with the claimant took place on 21 November 2017. Mr Cavanagh was present, as the claimant’s TU representative, and Ms Andrea Homer was present as note taker. The notes of that meeting are at pp.174-179. There was no mention in this meeting that Ms Ghaleb had informally interviewed Mr Haydyn. Nor was the allegation concerning defamatory information furnished with further details. The claimant responded to the allegation as follows:a. Allegation 1: the claimant initially focused on wanting to know who reported his attendance at the conference to management. Before expressing that he had requested annual leave to Mr Haydyn. And finally, the claimant focused on challenging the respondent’s guidance/policy.

b. Allegation 2: the claimant disagreed that any of the content of the email was defamatory, that the email was sent to non-trade union members in error, and that as it was a Trade Union matter then this was a matter for the trade union and not the respondent.

[65]On 5 December 2017, Ms Ghaleb held an investigation meeting with Mr Cornfield. Ms Homer was again present as a note taker. The notes of that meeting are at pp.207-208. This meeting lasted circa 10 minutes.

[66]A second investigation meeting held by Ms Ghaleb with the claimant took place on 17 January 2018. Mr John Smith attended as the claimant’s TU representative, and Ms Homer again attended as note taker. The notes of this meeting are at pp.224-227.

[67]On 22 January 2018, Ms Ghaleb wrote a letter to Mr Cornfield, informing him of her decision in relation to the grievance he raised against the claimant. Ms Ghaleb informed Mr Cornfield that she reached a decision to uphold his grievance. The grievance that was upheld was expressed in that letter as being:

[68]The investigation report was release by Ms Ghaleb on 24 January 2018. This report is at pp.234-243. The decision was that the claimant had a case to answer in respect of the two allegations. (iv) Decision Making

[69]The claimant’s case was referred to Ms Blacow, who was appointed to make a decision on what disciplinary action would be applied to the claimant.

[70]Ms Blacow held a Decision Maker Interview with the claimant on 15 February 2018. Mr Cavanagh was present, as the claimant’s TU representative, and Ms Gina Collins was present as note taker. Notes of the meeting are at pp.249-258 (although there are earlier versions of the notes in the bundle). In this meeting, the following was discussed/raised, amongst other things:a. The claimant raised concerns about the process

b. That there were flaws in providing the claimant with all the necessary evidence

c. The claimant repeated that he had asked for leave for the conference from Mr Haydyn

d. The claimant questioned whether attending a conference was ‘working’

e. It was raised by the claimant that the data owners of the email was the union, and not the respondent and therefore should not have been investigated by it

[71]Ms Blacow released her decision to the claimant on 01 March 2018. A record of Ms Blacow’s decision is at pp.296-301, and a copy of the completed Decision Maker’s template is at pp.302-306. Ms Blacow decided the following:a. That both the allegations were potentially in breach of the respondent’s policies

b. That appropriate and reasonable investigations had been conducted

c. That disciplinary procedures had been followed appropriately

d. That the appropriate level against which this behaviour should be considered was gross misconduct

e. That the claimant was given the opportunity to put forward mitigation

f. That allegation 1, attendance at the trade union conference, demonstrates a breakdown of trust between the claimant and the respondent.

g. In respect of allegation 2, the email, that the email had an impact on Mr Cornfield in that it made him feel bullied and intimidated, and that it did contain offensive, derogatory and unsubstantiated statements with the clear intention of damaging the reputation of Mr Cornfield. With the allegation being proven.

h. Ms Blacow concluded that both allegations were proven. And that the level of misconduct was serious enough to have destroyed the rleatoknship between the claimant and the department. And having considered mitigation, that the claimant would be dismissed without notice.

[72]Ms Blacow made the decision that either of the two incidents alone would have justified dismissal without notice (which was Ms Blacow’s oral evidence), but that he was being dismissed for a combination of the two. Ms Blacow honestly believed the claimant was guilty of the misconduct in question.

[73]The claimant was sent a letter confirming his dismissal dated 01 March 2018 (pp.307-308).

[74]The claimant appealed the decision to dismiss him by letter dated 14 March 2018. The appeal was made on the basis that there was a failure to follow procedure (see p.319).

[75]Following a number of delays, an appeal meeting was held with Mr Jordan on 21 August 2018 (notes of this meeting are at pp.367-373).

[76]As part of the process Mr Jordan sought guidance from Human Resources (see pages G, H and I). However, Mr Jordan reached his own conclusion based on the evidence before him and having considered the guidance he had received. This is clear form the content of the emails; they are merely advisory.

[77]Mr Jordan’s appeal decision (undated) is at pp.374-377. Importantly, having considered the claimant’s appeal with respect the attendance at the trade union conference allegation, in particular accepting that the claimant was not aware that he required permission to attend the conference and the ambiguity around the relevant policies, Mr Jordan decided that this allegation would not justify dismissal on its own, and that had it been the only allegation then this would have been reduced to a Final Written Warning.

[78]However, Mr Jordan concluded that the email allegation was well founded and that there was sufficient evidence to support a finding of Gross Misconduct. The decision to dismiss the claimant was upheld.

CONCLUSIONS

[79]In terms of both of the allegations that led to the claimant’s dismissal, they are both acts of misconduct that are properly separable from the Trade Union activities, as per Morris v Metrolink. Although both involved events that had a close nexus to trade union activities, the reason for the dismissal was the actions that the claimant did, that being attending an event whilst on sick leave without first gaining permission and the sending of an email using excessive and damaging language about a colleague to a group of fellow employees, not all recipients being trade union members, that caused the treatment complained of, rather than the trade union activity itself.

[80]In short, had the claimant attended any event, whether paid or voluntary, whilst on sick leave and without permission from his line manager in the form of annual leave, we find that the claimant would have been subjected to the same investigation and sanction. In this judgment, the event being a trade union event was irrelevant, and therefore the misconduct is properly separable from the trade union activity. Similarly with the email. Those investigating and determining the claimant’s case perceived the email as containing wording which made allegations, none of which had been substantiated, that on the face of it could damage the reputation and standing of Mr Cornfield in his employment, and which had been sent to an audience that was beyond the trade union membership. This is a matter that the respondent can have a legitimate interest in. It is the wording, the impact and the audience reach which was of clear concern to the respondent. This conduct is also separable from the trade union context.

[81]Consequently, the claimant’s claim for automatic unfair dismissal fails. He was not dismissed for reasons connected to trade union activity.

[82]Turning to the claim of ordinary unfair dismissal.

[83]It is clear that the decision makers in this case were Ms Blacow, who made the initial decision to dismiss the claimant, and Mr Jordan, who made the decision in relation to the claimant’s appeal. Although both sought and considered Human Resource advice, both acted independently and reached their own decisions based on the evidence that was before them. Having considered their evidence, we find that the respondent has satisfied the burden placed on it in establishing that the reason for the dismissal was that of misconduct.

[84]Once the claimant accepted that he had attended the conference and that he had sent the email in question, there was little required of the respondent in terms of investigation, other than to determine whether the acts in question amounted to misconduct and the severity of any such misconduct, which in turn would assist the respondent in determining the appropriate sanction to be applied. Although the claimant wanted to know who had reported his attendance at the conference to management, this became an irrelevant matter once the claimant accepted that he did attend. Likewise with the email, the identity of the individual who informed management of the existence of the email was irrelevant once the claimant accepted responsibility for its creation and subsequent distribution.

[85]The claimant developed an argument in this hearing that the respondent should have investigated the allegations that he was making in the email, to determine whether there was any substance to them, before then deciding whether what he had said in it was a misconduct issue. However, not undertaking such investigation, in our judgment, falls within the band of reasonable responses. This is against the backdrop of the claimant having initially raised a grievance against Mr Cornfield before then withdrawing it, not pursuing any grievances subsequent to this withdrawal, and then not raising that his allegations needing determined in order to properly assess the content of the email in either the disciplinary process or his appeal; instead he focused on the email being a matter that the respondent could not investigate as it was a Trade Union matter. Had the claimant presented evidence to the respondent of the treatment that he refers to in his email, then this would have been a material factor to consider in our analysis as to whether this decision not to investigate this matter further fell outside of the band of reasonable responses; however, he did not.

[86]In relation to attendance at the trade union conference. Given the purpose of the sick leave policies, the respondent did have reasonable grounds to conclude that the claimant had breached the rules which applied to engaging in outside activities during sick leave, without permission. And that this was based on all reasonable investigation needed in the circumstances. The claimant accepted he was in attendance, and the respondent made all reasonable enquiries required of it to determine whether the claimant had sought and been granted annual leave to cover the period of the conference, which we have made the finding that he had not. It is important to note here that the policy in question (see p.468) is worded in mandatory terms and makes it clear that a failure to comply with the rules may result in dismissal.

[87]In relation to the email. The respondent did have reasonable grounds to conclude that the claimant had sent an email containing highly damaging and unsubstantiated allegations about Mr Cornfield to numerous internal and external recipients, which was in breach of its internal rules. And this was based on all reasonable investigations necessary in the circumstances. The claimant accepted he sent the email, and that it was sent to internal and external recipients, not all of which were trade union members. The claimant interviewed Mr Cornfield, the primary subject of the email. Mr Jordan made enquiries as to whether the allegations in the email made by the claimant against Mr Cornfield were substantiated. And the respondent was in receipt of the email in question. Those are the reasonable investigations necessary by the respondent, in the judgment of this tribunal.

[88]However, although we accept that the respondent has satisfied the tribunal that the reason for the claimant’s dismissal was misconduct, and we have found that the respondent had reasonable grounds to consider that the claimant had engaged in misconduct, and that this was following reasonable investigation, this tribunal, having considered all of the matters in this case, concludes that the decision itself to dismiss the claimant for the reason of the misconduct in these circumstances does not fall within the band of reasonable responses. And this is in respect of either allegation separately, or if both were taken together.

[89]The respondent’s own findings do not support a finding of gross misconduct within its own policies.

[90]There was no suggestion that attendance at the trade union conference by the claimant was an abuse of the sick leave provisions, nor is it working for another employer whilst on sick leave (which was confirmed by Mr Jordan). At its height this was undertaking an activity that the claimant should have sought permission for whilst on sick leave, which the claimant failed to do as he did not understand that there was such a need. Against circumstances where had the claimant asked for leave for the conference period in advance he would have been granted it, and for which he was later given retrospective leave. This would more likely than not have fallen within the respondent’s definition of ‘More Serious Minor Misconduct’, being a short duration of unauthorised absence, which would have led to, in normal circumstances, a first written warning. Dismissing for this reason, we say, clearly falls outside of the band of reasonable responses. Albeit, we note here, that Mr Jordan, to a degree, overturned this decision for dismissal on appeal.

[91]In relation to the email allegation, again, at its height, this matter does not appear to fall within those categorised as gross misconduct by the respondent. Although this is not conclusive, it is a useful indicator for the tribunal. Furthermore, the respondent did not see the actions of the claimant as being such that it necessitated a suspension of the claimant, and therefore this action falls short of destroying the relationship of trust and confidence between the claimant and his department. Dismissing an employee in circumstances where there has been a simple error in the distribution list (there was no allegation of deliberately distributing this email beyond the trade union members list), is a one off incident, where the purpose of the email is clearly for external matters and for conduct that the respondent does not appear to classify as gross misconduct in its own policies, in our judgment would fall outside of the band of reasonable responses.

[92]A combination of the two would also fall outside of the band of reasonable responses.

[93]In these circumstances, the claimant’s claim for unfair dismissal in the ordinary sense succeeds.

[94]Considering that above, we make a finding that here is no evidence to support a Polkey reduction. Although we note that the clamant is seeking re-engagement.

[95]Given our conclusions above, the respondent has not established that the claimant’s conduct had caused a breakdown of trust and confidence, nor that he had acted in a manner that could be properly described as a repudiatory breach of his contract. Consequently, the claim for wrongful dismissal succeeds.

[96]Turning to the victimisation complaint. The claimant was not was not subjected to any detriment because of having done a protected act, and in particular, Mr Jordan did not uphold the decision to dismiss him because of the protected act. Similar to our conclusion above in relation to the automatic unfair dismissal complaint, the reason for upholding the decision to dismiss him is separable from the protected act. The decision to uphold this part of the decision was due to the potentially damaging words to Mr Cornfield, which was distributed to persons outside of the trade union. In these circumstances the claim for victimisation is dismissed.

[97]Given that the claim for ordinary unfair dismissal has succeeded, we will now be seeking an appropriate date to list this case for remedy.

[1]It is ordered that the claimant be re-engaged pursuant to s.115 of the Employment Rights Act 1996 (‘ERA’).

[2]Any compensation paid to the claimant is subject to a 30% deduction for contributory fault.

[3]As determined at the hearing, he terms on which the claimant will be re-engaged are as follows:a. The identity of the employer: The Department of Works and Pensions (s.115(2)(a) ERA).

b. The nature of employment: At grade Administrative Officer (AO) National, at the respondent’s Birmingham or Dudley office (s.115(2)(b) ERA).

c. Remuneration: at an annual gross figure of £18,478 (claimant’s pay at time of dismissal) plus any uplifts, to take account any annual increases to pay and any other uplifts that would have been applied to the claimant had he not been unfairly dismissed (s.115(2)(c) ERA).

d. Amount payable to the claimant for the period between date of termination and date of re-engagement (s.115(2)(d) ERA): i. The net sum from: gross pay of £102,283.20, plus any uplifts to the pay during the affected period, minus 30% for contributory fault. ii. 4 weeks’ pay at current AO rate that claimant would have been entitled to had he not been dismissed, minus 30% for contributory fault. iii. The respondent will be responsible for grossing up the figure for the purpose of making any necessary deductions (tax, pension contributions etc).

e. The claimant be reinstated to the Alpha Pension Scheme as if he had not been dismissed. The respondent shall make whatever employer contributions are necessary to give effect to this order (s.115(2)(e) ERA).

f. This order must be complied with by 06 October 2023 (s.115(2)(f) ERA). Should the respondent comply with this order by an earlier date, then the figure at para 3(d)(ii) should be reduced accordingly.

[4]In advance of completing these written reasons, the respondent had provided the necessary financial information for the purposes of the recoupment regulations, as directed. I have included these below. This information also enables me to include the precise figures for the remedy award:a. In paragraph 3(d)(i) above, the net sum to be paid to the claimant is £66,633.16.

b. In paragraph 3(d)(ii) above, the net sum to be paid to the claimant is £1,057.48 (although this must be reduced or increased if the claimant’s re-engagement date changed)

c. The respondent must calculate and pay the claimant an interest payment using 8% per annum, on the figure of £67.690.64 minus the amount recouped.

[5]The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996 (as amended) apply to this award (see annex for further details). For the purposes of completing this information, I have used the interest payment figure of £1,617.16, which is the amount that would be awarded if no recoupment took place (ie interest based on a monetary award of £67,690.64). For the purposes of those Regulations:a. The monetary award is: £69,307.80.

b. The prescribed element is: £67,690.64.

c. The prescribed period is: 01 March 2018 to 06 October 2023

d. The monetary award exceeds the prescribed element by: £1,617.16 (although this solely relates to interest, and will need to be adjusted once recoupment has taken place, with no interest paid on the figure equivalent to that recouped).

[6]This remedy hearing follows a liability judgment that was handed down on 19 August 2021. The claimant was found to have been unfairly dismissed in that judgment. The claimant had indicated that he was seeking reinstatement or reengagement following his unfair dismissal. Remedy was stayed in this case pending an appeal to the Employment Appeal Tribunal.

[7]During the period between the liability judgment being handed down and this hearing taking place, one of the panel members that had heard this case had retired. Regional Employment Judge Findlay substituted him under Regulation (3) of the ET (Constitutional and Rules of Procedure) regulations and under Rule 57. This meant that Dr Hammersley replaced Mr Talbot.

[8]In determining remedy in this case, the tribunal was assisted by an evidence file that ran to 423 electronic pages. Within this bundle was the claimant’s witness statement (although an updated one was presented which stood as the claimant’s evidence) and a statement of Mr Robert Birch on behalf of the respondent.

[9]The tribunal carefully read the liability judgment in this case, alongside other documentary evidence before hearing the evidence.

[10]We were thankful for the approach adopted by both Counsel in this case, as it greatly assisted the tribunal. Law

[11]The skeleton arguments presented on behalf of both the claimant and the respondent set out the relevant law that the tribunal was to consider at this hearing. The focus being initially on re-employment of the claimant, either by way of re-instatement or re-engagement.

[12]The remedy of re-instatement and/or re-engagement are provided for by sections 112-116 of the Employment Rights Act 1996. With section 115 being the provision relating specifically to re-engagement.

[13]Section 115 of the Employment Rights Act 1996 provides that:(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.

(2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including— (a) the identity of the employer, (b) the nature of the employment, (c) the remuneration for the employment, (d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, (e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (f) the date by which the order must be complied with.

(3) In calculating for the purposes of subsection (2)(d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of re-engagement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.

[14]Whilst s.116 of the Employment Rights Act 1996 provides the powers the tribunals has in respect of the choice of order and its terms. It provides:(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.

(3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.

(4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.

(5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.

(6) Subsection (5) does not apply where the employer shows— (a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or (b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.

[15]Both representatives highlighted relevant legal principles/case law that the tribunal ought to consider in making its decision.

[16]Mr Isaacs, on behalf of the claimant, identified several principles that the tribunal should consider:a. That when considering whether re-employment is practicable, the tribunal should adopt a broad common sense view of the question. And should consider whether, having regard to the industrial relations realities, it is capable of being put into effect with success. [per Stephenson LJ in Coleman and Stephenson v Magnet Joinery

(1974) IRLR 343

b. When considering whether re-employment is practicable, and whether trust and confidence has been broken so as to act to a barrier to such a remedy, he identified that the critical question is whether the employer had a genuine, and rational belief that the employee had engaged in conduct which had broken the relationship of trust and confidence between the employer and employee. [Kelly v PGA European Tour

[2021] EWCA Civ 559

c. That in deciding whether it is practicable to make an order for reengagement, the Tribunal is not tasked with making a final determination on practicability. It only need make a provisional assessment until an enforcement hearing. Indeed, the Tribunal can make an order for reemployment to test the employer’s claims on practicability and whether they are justified [see Timex Corporation v Thompson

[1981] IRLR 522

d. Contributory conduct is relevant as to whether it is “just” to make an order. There is no reason in principle why a tribunal should not make a reemployment order even where there is a large degree of contributory conduct, provided it forms a reasonable view that the circumstances warrant it. In Automatic Cooling Engineers Ltd v Scott EAT 545/81, for example, the EAT upheld a re-engagement order in a case where contribution had been assessed at 75 per cent.

[17]And Mr Ryan, on behalf of the respondent also identified the following relevant principles/case law (and relevant paragraphs from the relevant judgment):a. The question of practicability in s.116(3)(b) is to be taken account of as at the date when a re-employment order is being considered. This is the first stage of consideration (it is open to the employer to re-argue the question of practicability at the further remedy stage under s 117(4)) and is undertaken on a provisional basis only, as explained by Baroness Hale in McBride v Strathclyde Police Joint Board

[2013] IRLR 297

: “At the stage when it is considering whether to make a reinstatement order, the tribunal's judgment on the practicability of the employer's compliance with the order is only a provisional determination. It is a prospective assessment of the practicability of compliance, and not a conclusive determination of practicability. This follows from the structure of the statutory scheme, which recognises that the employer may not comply with the order. In that event, s 117 provides for an award of compensation, and also the making of an additional award of compensation, unless the employer satisfies the tribunal that it was not practicable to comply with the order. Practicability of compliance is thus assessed at two separate stages - a provisional determination at the first stage and a conclusive determination, with the burden on the employer, at the second.”

b. That loss of trust and confidence may render re-instatement or reengagement impracticable. For example, where there is a breakdown in trust between the parties and a genuine belief of misconduct by the employee on the part of the employer: see Wood Group Heavy Industrial Turbines Ltd v Crossan

[1998] IRLR 680

where Lord Johnston at para 10 (in the context of misconduct involving drugs and clocking offences) held: “in this case it is not practical to order reengagement against the background of the finding that the employer genuinely believed in the substance of the allegations . . . when allegations of this sort are made and are investigated against a genuine belief held by the employer, it is difficult to see how the essential bond of trust and confidence that must exist . . . can be satisfactorily repaired by re-engagement or upon re-engagement. We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest cases where there is a breakdown in confidence as between the employer and the employee.”

c. In ILEA v Gravett

[1988] IRLR 497

the EAT accepted that a genuine belief in the guilt of an employee of misconduct, even if there were no reasonable grounds for it, was a factor that had to be weighed properly in deciding whether to order re-engagement: “The tribunal ordered reengagement and are criticised by the Appellant employer for what they submit is a wholly perverse decision upon all the facts of this case. It is a possible view of that decision, but we do not seek nor do we need to go that far. An essential finding in the present case was that the authority had a genuine belief in the guilt of the applicant. It is said with accuracy that this is the largest education authority in the country and that it has a vast area to cover and a vast variety of posts into which the applicant could be fitted. It is, however, a common factor in any of those posts that the applicant would have the care and handling of young children of both sexes. Bearing in mind the duty of care imposed upon the authority and the very real risks should they depart from the highest standard of care, we take the view that this tribunal failed adequately to give weight to those factors in the balancing exercise carried out in order to reach their decision on re-engagement.” Findings of fact We make the following findings of fact on the balance of probabilities, having considered all the evidence before us. We have restricted our findings to those matters necessary for us to determine the issue before us. The claimant is currently fit for work.

[19]The respondent is a large organisation and has a variety of sites in the Birmingham locality. This includes one in Birmingham and one in Dudley.

[20]The claimant had misunderstood the sick leave policy that resulted in him not following it. And this was a reasonable misunderstanding by the claimant (see para 39 of liability judgment). Some blame rests with the claimant with this matter, and he accepts that.

[21]Had the claimant made a request for leave to attend the trade union conference, then he would have been granted it (see liability judgment at para 90).

[22]The allegation concerning the distribution of the email was not an act of gross misconduct. Rather it was a simple error made by the claimant in respect the distribution list. This was a one-off incident (see paragraph 91 of the liability judgment). Some blame rests with the claimant with this matter, and he accepts that.

[23]The claimant did have some issues with individuals employed by the respondent when he worked there previously. Specifically, with Mr Cornfield (the subject of the email and a grievance raised by the claimant) and a Michelle Smith.

[24]The claimant still considers that the reason why the respondent dismissed him was because of his union activities.

[25]Between 17 August 2017 and 01 March 2018, during the alleged misconduct issues and before he was dismissed, the claimant was working for the respondent, and continued to work alongside Mr Cornfield and everybody else without incident or any concerns. The claimant did not treat Mr Cornfield negatively during this period.

[26]During this period there was no criticism raised about the claimant’s working relationships or with how he was working with other people.

[27]Both Mr Cornfield and Ms Smith are currently based at the Dudley site. Neither have any role at the Birmingham site.

[28]The respondent currently operates a hybrid working option, which allows individuals to work away from the office. This is not a contractual right, but is an option offered to workers. The respondent reserves the right to rescind any such arrangement where there are concerns about the efficacy of work whilst working away from the office.

[29]Mr Cornfield works within the Complex Case Worker team. He has a hybrid working pattern. He has to spend a minimum time of 40% of his working time in the office. His arrangement tends to be 2 days in the office for 3 weeks, followed by a period where he spends only 1 day in the office.

[30]The claimant, before he was dismissed, was employed with the Child Support Agency part of the respondent. However, this team/role was closed in 2018. Most of the workers from the Child Support Agency transferred to the Child Maintenance Services team. This team operates in the Dudley branch only. As these were new roles, those that transferred across were provided with the necessary support in terms of training and upskilling. The respondent did not dismiss anybody for failing to pass the training.

[31]The respondent is currently recruiting into the Child Maintenance Services team.

[32]Mr Cornfield is not part of the Child Maintenance Services Team. There are many teams within the respondent, including the Child Maintenance Services Team where, if the claimant was part of that team, he would not have daily interaction with Mr Cornfield.

[33]The respondent made nobody redundant due to the change in role.

[34]There was a standard 12-week training period; however, the specific length of training would be dependent on the individual and the specific area that they were being assigned to.

[35]The respondent considered that those individuals that were previously employed in the Child Support Agency were suitable for admin officer role with the Child Maintenance Services team if they were provided with adequate training.

[36]Mr Birch did not consider the claimant’s personnel file before giving evidence today. Nor did he review any of the claimant’s previous appraisals. Mr Birch relied solely on information provided to him by the HR Business Partner. He did not know what enquiries they made in providing him with any of the information he received.

[37]Mr Birch accepted that the training programme was not a barrier to the claimant returning to work for the respondent. And this is a finding we make.

[38]Mr Birch did not speak to Mr Cornfield about the likely impact on him should Mr Latchman return to work.

[39]Mr Birch did not speak to the claimant’s then line manager about the annual leave incident, and whether there had been a breakdown of trust and confidence between the claimant and management.

[40]On appeal, the annual leave incident was deemed not sufficient to justify termination.

[41]Mr Birch, on behalf of the respondent, does not identify any individual within his statement where there has been a breakdown in their relationship with the claimant.

[42]At its height, Mr Birch spoke to Emma Cornfield, who mentioned that managing the claimant may be difficult, in particular in keeping him focussed on the work he needs to do. However, Mr Birch accepted that this is not uncommon. That the respondent has difficult employees to manage. And there are people where it is a challenge to keep them focussed.

[43]Mr Birch accepted that there was no evidence that the claimant had victimised a fellow employee. Nor that he did not treat others with courtesy or respect. And that there nothing to suggest something had happened that would have justified suspending the claimant. Mr Birch also accepted that there was no evidence that the claimant returning to work would have an adverse effect on the workforce. Given Mr Birch’s candid acceptance of these matters, we make the findings that no evidence exists as none of them do exist.

[44]It is possible that the employment relationship between the claimant and the respondent could be successful if he returned to work for the respondent. This was the evidence of Mr Birch. Closing Submissions

[45]The tribunal benefitted from written submissions that were prepared on behalf of both the claimant and the respondent, which were both supplemented by closing oral submissions.

CONCLUSIONS

[46]Re-employment of an individual through re-instatement or re-engagement were the intended primary remedies for when an individual had been found to have been unfairly dismissed.

[47]The respondent resists an order of re-engagement with submissions that the respondent’s trust and confidence in the claimant has been damaged with genuine and significant concerns, such that any such order would not be capable of being carried into effect with success.

[48]Mr Ryan identified 5 reasons why such an order was not practicable, at paragraph 16 of his skeleton argument. And we turn to each of these:a. possible adverse reaction of the rest of the workforce (Bateman v British Leyland UK Ltd

[1974] IRLR 101

); the judgment is now a matter of public record, so it would be difficult to avoid this. The respondent has not produced any evidence of this. Mr Birch, nor anybody else for the respondent, made any such enquiries. There was no evidence at the liability hearing that the claimant’s relationships with others was affected by matters for which he was dismissed, save for that with Mr Cornfield. And this included during the period of investigation and decision making, during which the claimant was not suspended, and continued to work effectively as part of his team. With respect Mr Cornfield, he is now employed in a different role. He works to a hybrid arrangement, which limits his time in the office to at most 2 days per week. The claimant could likewise be employed on a hybrid arrangement. The working arrangements could easily be organised so that the claimant and Mr Cornfield never come into contact face to face if that is required. There is also the possibility of the claimant being placed at the Birmingham office, which would remove him from the office at which both Mr Cornfield and Emma Cornfield currently work.

b. A ’poisoned' atmosphere in the workplace if the Claimant has to work with the persons involved in the dismissal process or who are aware of the circumstances of his previous dismissal. The atmosphere would be counter-productive; (Meridian Ltd v Gomersall

[1977] IRLR 425

, EAT; Enessy Co SA (t/a Tulchan Estate) v Minoprio and Minoprio

[1978] IRLR 489

, EAT (obiter)); Similar to those observations above, there is simply no evidence of such a poisoned atmosphere. The claimant continued to work with those involved in the dismissal process during the investigation and whilst the matter was being determined.

c. the Respondent has irretrievably lost trust and confidence in the Claimant given:

(1) his poor judgment/inappropriate email and

(2) he has not recognised his own wrongdoing. The issue of whether the claimant’s conduct with respect the email broke trust and confidence between the respondent and the claimant was already addressed at the liability hearing. With the evidence being found to support that it did not break that implied term and that the respondent did not have a genuine and rational belief that it had been, for the reasons explained at paragraph 91 of that judgment. And, our findings above are that the claimant has recognised some blame in this matter. Further, the individual identified as possibly still being in conflict with the claimant, Mr Cornfield, has at no point, particularly in his grievance, identified that trust and confidence has been broken between him and the claimant. There is simply no basis before this tribunal to support such a contention.

d. whilst a continuing belief by a line manager (or senior management) in the employee's guilt may not generally be sufficient to prevent an order (Boots Co plc v Lees-Collier), a continuing breakdown in trust and respect is likely to be enough (see para 11 above - Wood Group Heavy Industrial Turbines Ltd v Crossan) This factor has been taken into account. Given that there was a belief in the claimant’s guilt of misconduct in this case. However, the same observations as to the trust and confidence matter addressed above apply.

e. the question of the Respondent's own genuine belief is a relevant factor (albeit that is not the determining question). And this as a factor has also been considered in reaching this decision.

[49]This tribunal is tasked making a provisional determination as to whether it is practicable to make an order of re-engagement. And we find that it is.

[50]There is simply no evidence that the alleged misconduct would render such an order impracticable. The respondent has not adduced evidence that convinces the tribunal otherwise.

[51]At its height, the respondent submits that the conduct itself was such as to damage relationships within the respondent, with the workforce generally and with management. However, this is speculative at best. There is simply no evidence brought forward in that regard.

[52]What we do have is evidence from Mr Birch, who was called to give evidence by the respondent. He gave evidence that:a. between 17 August 2017 and 01 March 2018 (the date of dismissal) the claimant continued to work with the respondent with no issue and that there was nothing to suggest that the claimant’s conduct had affected relationships within the workplace.

b. That the only person he had discussed the claimant’s return with was Emma Cornfield, who at its height identified that the claimant’s return to work could be difficult. But with no context.

c. That there is a system of hybrid working, that could be used to limit the claimant coming into contact with Mr Cornfield or Ms Emma Cornfield.

d. That the claimant has sites around the Birmingham area, which again could be used to limit the claimant coming into contact with Mr Cornfield or Ms Emma Cornfield.

e. That there are roles available with the respondent in the Child Maintenance Services team at the same level that the claimant had been employed. And to which the majority of the team that the claimant was in had transferred successfully following a period of training.

f. That it is possible that the employment relationship between the claimant and the respondent could be successful if he returned to work for the respondent. Before explaining in re-examination that this would depend on if the claimant was committed to the role and the training programme, and if he puts down what happened to mistakes.

[53]This tribunal concludes, that based on all the evidence before it, that an order of re-engagement would be practicable. The tribunal does consider that the claimant contributed to his dismissal to the extent of 30%, but that this does not render such an order impracticable.

[54]The claimant’s continued belief that his treatment was due to his trade union activities is not surprising. This is not uncommon, even following a tribunal judgment deciding otherwise. And this is especially given the context of the conduct that led to the claimant being unfairly dismissed. It is often difficult to separate out the conduct from the context. Continuing to hold these views, given that the claimant held this belief during the period 17 August 2017 and 01 March 2018 without it affecting his working practices and relationships in the workplace (save for with Mr Cornfield), does not render such an order impracticable.

[55]This tribunal’s decision is to order re-engagement of the claimant by the respondent.

[56]The terms on which the claimant will be re-engaged are as follows:a. The identity of the employer: The Department of Works and Pensions (s.115(2)(a) ERA).

b. The nature of employment: At grade Administrative Officer (AO) National, at the respondent’s Birmingham or Dudley office (s.115(2)(b) ERA).

d. Amount payable to the claimant for the period between date of termination and date of re-engagement (s.115(2)(d) ERA): i. The net sum of: £102,283.20, plus any uplifts to the pay during the affected period, minus 30% for contributory fault. ii. 4 weeks pay at current AO rate that claimant would have been entitled to had he not been dismissed, minus 30% for contributory fault. iii. The respondent will be responsible for grossing up the figure for the purpose of making any necessary deductions (tax, pension contributions etc).

[57]This order must be complied with by 06 October 2023 (s.115(2)(f) ERA). Should the respondent comply with this order by an earlier date, then the figure at para 3(d)(ii) should be reduced accordingly.

[58]These figures have been updated in paragraphs 4-5 above, following information provided by the respondent in respect of uplifts and following the deduction of statutory deductions.

[59]I have also clarified that contained in paragraph 3(d)(i), to ensure that it is read correctly.

[60]The relevant information for recoupment has also been added to these written reasons.