Mr M Jenkinson v Staffordshire Fire and Rescue Service: 1305588/2023
EMPLOYMENT TRIBUNALS
Case No 1305588/2023
Between
Mr. Bob Marsh, Trade Union representative/Lay representativeClaimantMs. Hilary Winstone, CounselRespondent
Before
Employment Judge WedderspoonMs. Hilary Winstone (instructed by Counsel) for respondentDate 26 July 2024
JUDGMENT
[1]The claim of unfair dismissal is not well founded and is dismissed.[2]The claim of automatically unfair dismissal is not well founded and is dismissed.[3]The Polkey deduction is 100%.[4]The claimant contributed to his dismissal 100%.
REASONS
[1]By claim form dated 16 August 2023 the claimant brought complaints of ordinary unfair dismissal and automatically unfair dismissal by reason of making public interest disclosures. ACAS conciliation was entered on 5 June 2023 and a certificate was obtained on 17 July 2023. List of issues[2]Unfair dismissal Protected disclosure2.1 Was the reason or principal reason for dismissal that the claimant made a protected disclosure? If so the claimant will be regarded as unfairly dismissed. Misconduct dismissal2.2 what was the reason or principal reason for dismissal? The r respondent says the reason was conduct. The tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.2.3 if the reason was misconduct did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The tribunal will usually decide in particular whether :2.3.1 there were reasonable grounds for that belief;2.3.2 at the time the belief was formed the respondent carried out a reasonable investigation;2.3.3 the respondent otherwise acted in a procedurally fair manner;2.3.4 dismissal was within the range of reasonable responses.[3]Protected disclosure3.1 did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996?3.2 what did the claimants say or write? When? To whom? The claimant says disclosures were made on these occasions?3.2.1 At the end of September 2022 he said orally to two managers Dermott Hogan and Dan Keeling that work had been done on the private properties of Becky Bryant chief fire officer namely rendering done to Becky Bryant’s bungalow and Robert Barber deputy chief officer work done on a drive which was paid for by the brigade (this was clarified by the claimant’s representative at the start of the hearing).3.2.2 Did this disclose information?3.2.3 Did the claimant believe the disclosure of information was made in the public interest?3.2.4 Was that belief reasonable?3.2.5 Did the claimant believe it tended to show that :3.2.5.1 a person had failed was failing or was likely to fail to comply with any legal obligation;3.2.5.2 information tending to show any of these things had been was being or was likely to be deliberately concealed.3.2.6 Was that belief reasonable3.3 if the claimant made a qualifying disclosure it was a protected disclosure because it was made to the claimants employer. The Hearing3.4 The Tribunal was provided with an agreed bundle of 980 pages; agreed chronology and a witness statement bundle of 235 pages. The claimant called Ms. A. Rhodes (fire fighter on call for the respondent); Mr. Anderson, (retired fire fighter with the respondent); the claimant; and Mr. Moss (former Branch Secretary for the Fire Brigades union). The claimant also relied as written representation the witness statement of Ralph Rhodes who was no longer available to give evidence. The respondent called Mr. Daniel Keeling; Station Manager with the respondent; Dermot Hogan, retired Group Manager and Head of Northern Service Delivery Group of the respondent; Michelle Hickmott, Assistant Chief Officer and dismissing officer and Glynn Luznyj, Deputy Chief Fire Officer and appeal officer.3.5 On day 1 of the hearing the claimant made an application for witness orders for PC Gallimore alleged by the claimant to have inappropriately and unlawfully obtained CCTV evidence of the events on 10 December 2022 from Kenny’s Sport Bar and a personal friend of Mr. Ruckledge, the disciplinary investigator; Josh Gamble, an individual present at the incident on 10 December 2022; Rebecca Kenny owner of the Kenny’s Sports Bar and Andrew Fix Hewitt, former employee of the respondent. The claimant was requested to identify how each of the potential witnesses could assist the Tribunal in determining the list of issues at pages 46 to 47 of the bundle. Mr. Marsh on behalf of the claimant submitted that PC Gallimore obtained the CCTV footage which the OPC had admitted was illegally obtained and was significantly edited for the purposes of incriminating the claimant; Josh Gamble was present on the day; Rebecca Kenny owner of Kenny’s bar felt pressured by Mr. Ruckledge to provide the CCTV evidence and Andrew Fox Hewitt is a former employee who discussed the substance of the public interest claim with Ralph Rhodes.[4]The respondent objected to the applications on the basis of relevance. The respondent submitted that the claimant has to establish reasonable belief in the alleged public interest disclosure; the claimant was trying to establish that the allegation was actually true. The respondent has admitted within its ET3 that in June 2022 the claimant commented to Station Manager Keeling that the then Chief Fire Officer had work undertaken on her own property via the respondent and the then Deputy Chief Officer had a number of tonnes of stone delivered to his house via the respondent stating he was informed by the previous estates manager. Further it is accepted that the claimant also mentioned this to Mr. Hogan in an informal conversation that Robert Moss had told him he was going to report the then Chief Officer and Deputy Chief Officer for abuse of their position in receiving services and goods they were not entitled to. Andrew Fox Hewitt was being called to throw mud at the respondent and was irrelevant to the issues to be determined by the Tribunal.[5]The Tribunal determined that in respect of the claimant’s suggestion that the CCTV was inappropriately obtained by PC Gallimore from Rebecca Kenny and edited that this is a matter for the investigating officer Mr. Ruckledge who at present the respondent was not calling. Josh Gamble was interviewed during the investigation see pages 78 to 83 and page 133 to 135 and was also available for questioning during the disciplinary hearing; that evidence was available to the respondent when making the decision to dismiss. The statement of Andrew Fox Hewitt did not appear relevant to any of the issues to be determined. In the interests of justice and in accordance with proportionately in accordance with the overriding objective the Tribunal would make a witness order for Mr. Ruckledge to attend the hearing noting that as he was called by the claimant he could not be cross examined unless treated as a hostile witness. Applications for other witnesses were rejected.[6]The respondent raised concerns about the length of and relevance of attachments to Mr. Moss statement which is 170 pages in length. The Tribunal made it clear it was only interested to hear evidence relevant to the list of issues it had to determine.[7]It was agreed that the Tribunal required the rest of day one to read the witness statements and relevant material. The Tribunal timetabled the case so that all evidence should be completed by day 5; this may required the Tribunal to guillotine questioning and made provision for submissions if time ran over. Fortunately by reason of the efficient manner in which the parties ran their cases, evidence was completed by the afternoon of day 3.[8]With the parties consent the Employment Judge watched the three clips of the events on 10 December 2022 in the Tribunal.[9]The respondent provided additional documents on the Judge’s request which were added to the bundle in the absence of any objections from the claimant; the cultural framework (page 981); the Whistleblowing Policy page 982 to 987 and the Disciplinary Policy and Procedure, page 988 to 1013. These policy documents were in place at the relevant time of the claimant’s dismissal.[10]At the end of day 3 and in the course of the cross examination of Glynn Lunzji, the claimant’s representative applied to add unsigned witness statements from Jack Lee and Adam Bowen. These were presented outside of the time limits to exchange for witness statements; the respondent had not had any opportunity to cross examine the witnesses and were limited to an allegation made against Mr. Lunzji. The respondent objected. The claimant was permitted to put the allegation to Mr. Lunzji about the football match and the Tribunal accepted the “statements” as written representations noting that they were unsigned; they were provided late and their evidential weight was minimal as they had not attended and the evidence was untested. Facts[11]On 26 March 2000 the claimant commenced employment as a firefighter with the respondent. At the time of his dismissal, he was a Watch manager at Newcastle full time (about 42 hours per week); Green watch and a temporary crew manager at Rising Brook, (retained about 28 hours per week) Orange Watch part time. The claimant received a certificate of loyal service (page 176) in recognition of his dedicated and loyal service to the community while serving as a member of the Staffordshire Fire and Rescue service.[12]As a Watch manager, he accepted under cross examination he was in a position of responsibility for setting an example as a role model for firefighters in his team. Terms and conditions[13]The claimant’s main statement of employment particulars that page 299 to 304 refers at paragraph 21 to conduct and obligations. It states firefighters “are expected to maintain a high standard of conduct and discipline both on and off duty and must take care to uphold the good reputation and prestige of the Fire Service at all times. Failure to maintain these standards of behaviour may result in action being taken under the service disciplinary procedure or capability procedure as appropriate. Standards of conduct for firefighters are laid down in service policies. Please see to these documents for further information”. Policies[14]The respondent’s disciplinary policy and procedure in place at the time page 988 to 1013 sets out examples of gross misconduct that may lead to summary dismissal (see page 1003 and 1004) and includes physical violence and bringing the authority into serious disrepute. It also includes a number of potential disciplinary sanctions namely counselling/informal warnings; written warnings; payback of time/recoup of loss; dismissal; transfer to another location, role or department, suspension without pay, demotion and loss of increment.[15]The principles of the disciplinary policy set out at paragraph 2.2 state in the event of disciplinary action the emphasis should be to encourage an improvement in behaviour where appropriate rather than merely punish the employee. A full investigation of facts and an opportunity for the individual to explain their case should be undertaken. Further pursuant to paragraph 2.4 it states the employee shall be kept fully informed of the allegations made against him and will have adequate opportunity to provide an explanation or rebuttal. Under paragraph 4.2 investigation it is stated employees requested to attend an investigatory meeting may be given advance warning and time to prepare however this is not always appropriate and is at the services discretion. There is no right to be accompanied at any such investigatory meeting although this may be allowed at the discretion of the authority.[16]Pursuant to the cultural framework page 981 the expected standard from a member of the respondent is to be polite respectful and approachable; promoting positive and professional image of the respondent and to display integrity at all times. Conduct regarded as inappropriate includes exhibiting aggressive overpowering or bullying behaviour. Under cross examination, the claimant accepted he was aware of the cultural framework and that his role required honesty and integrity.[17]The respondent’s Code of Ethics for Fire and Service Rescue (page 339 to 353) sets out the ethical principles to help the respondent continually improve the organisational culture and workforce diversity and assist the Force in supporting the community in the best way. The ethical principles included putting the community first, integrity, dignity and respect, leadership, equality, diversity and inclusion. This was introduced to the respondent and other brigades nationally in May 2021 and was fully incorporated into the respondent’s organisation in August 2022 via adoption during a staff briefing. The respondent has sought to amend each and every policy since then to make express reference to the code of ethics.[18]The respondent also had a whistle blowing policy (page 982 to 987) which sets out a whistle blowing procedure. Concerns could be raised indirectly via the employees Line Manager or representative body/professional association or indirectly via the confidential reporting line “Say No”. Also, an officer could raise a concern/make a disclosure directly with the Chief Executive of Staffordshire Commissioners office.[19]At the time of the claimant’s dismissal, he had been a trade union representative for one year. He had not received any training on the whistleblowing policy at the time and he stated felt he could not raise his concerns about Bryant and Barber because he was a lone voice at trade union meetings. The Tribunal was not satisfied with this evidence. The Tribunal did not consider this meant that the claimant was unaware of the policy or that he could not use it. The policy expressly states that an individual has a number of means of raising a concern and the Tribunal was not satisfied that the lack of training of the claimant or his perception he was a lone voice at trade union meetings inhibited him in any way to using these processes. The policy indicates that the raising of complaints can be anonymous. Protected interest disclosure[20]The claimant’s evidence is that he was informed by Mr. Moss that Becky Bryant in about 2016 banned Ralph Rhodes, Building Manager, from the premises and/or was marched off the fire station premises. Mr. Moss had said that Mr. Rhodes had said had received receipts for the work on the rendering of the bungalow of Ms. Bryant’s bungalow. She had said she took cash out of her bank account to pay for the works and waved her bank statement at Mr. Rhodes. It was put to the claimant during cross examination that perhaps the reason Mr. Rhodes had failed to attend the Tribunal was because he would have had to create false invoices and could be implicated in a fraud; the claimant agreed this might be the case. The claimant added Mr. Barber paid three payments totalling £3,700 to his son’s cycling team out of public finds. It was suggested to the claimant he had listened to Mr. Moss and Mr. Rhodes was a disgruntled ex employee. The claimant did not accept this; he suggested Mr. Rhodes was now doing some work at the station for Mr. Barber and that was probably the reason why he failed to give evidence at the Tribunal. It was suggested to the claimant that the assertions about the Chief Officers were unbelievable. The claimant said that it was not just these two officers who talked about it. The claimant provided a photograph of the alleged driveway of Mr. Barber from google but accepted under cross examination that the photograph was not of the actual house of Mr. Barber.[21]Mr. Keeling’s evidence to the Tribunal which the Tribunal accepted was that stories/gossip are a daily part of fire service life and have become the norm. This is corroborated by Adam Bowen who accompanied the claimant at his investigation interview who stated in the course of the claimant’s investigation interview on 23 December 2022 at page 101 that “its an age old thing isn’t it gossip”. Mr. Keeling accepted that the claimant had raised with him that Rebecca Bryant then chief fire officer had worked on her property which was paid by the service. This occurred on 29 June 2022 after an attending an incident in which the claimant was also present at as the officer in charge of Newcastle's fire appliance. Mr Keeling attended as the tactical advisor. The claimant also stated that the then deputy chief fire officer Rob Barber, now chief fire officer had tonnes of stone delivered either to his house or to Ipstones fire station for his house again paid for via the service. The claimant stated he'd been told this by Ralph Rhodes the former estates manager. Mr Keeling thought the allegation appeared to be on the far end of unlikely even ridiculous and the conversation became heated. Mr Keeling informed the claimant he had no knowledge of what he was claiming and tried to advise the claimant he should look to form his opinions based on facts rather than rumours he heard from a former employee. Mr Keeling’s impression was that the claimant was engaging in gossip caused by his frustration with contractual changes that were happening within the service to which the claimant did not agree. He did not inform Mr Keeling that he had any evidence nor did he say that he was raising this as a concern or making a protected disclosure. On 30 June 2022 Mr Keeling relayed the conversation with the claimant to the station manager for Newcastle Andy Bourne the claimant's manager. Mr Keeling had been made aware that the claimant was making uncorroborated comments. Mr Bourne stated he was aware.[22]On another occasion in 2022 Mr Dermot Hogan now retired and former group manager and head of the northern service delivery group had an informal conversation with the claimant on the yard at the rear of Newcastle fire station. They discussed a former member of staff Mr Moss who had recently been dismissed. The claimant stated that Mr Moss had told the claimant that Mr Moss was going to and had reported the then chief officer Rebecca Bryant and deputy chief officer Rob Barber for abuse of their position in receiving services and goods they were not entitled to; he did not offer any details. Mr Hogan was aware at the time that Mr Moss had made a number of allegations about personnel at Newcastle and was aware that they were investigated as part of the challenge by Mr Moss against his dismissal. Mr Hogan at the time thought Mr Moss’ allegations had no merit and told the claimant so; Mr Moss was entitled to raise any allegations he had believed they would be fully investigated.[23]Mr Rhodes (page 218) who did not attend the Tribunal to be cross examined provided a written representation stating he can confirm he had no knowledge of any such work being carried out at Mr Barber's home. This was in stark contradiction to what he had allegedly told Mr. Moss and the claimant and Mr. Moss accepted in cross examination that Mr. Rhodes was a liar. In his written representation he said that at some point between 2013 to 2015 Ms. Bryant asked if he could ask the builder if they could do work on her property VAT free for cash. The work was completed and then the builder approached Mr Rhodes for payment as he stated Ms. Bryant would not pay and told the builder to discuss with me. He said he had no control over this so spoke to Ms. Bryant who said something along the lines of “add it to all the jobs they do in the future” Mr. Rhodes could not remember the full conversation. He said when he asked what if there's any questions, Ms Bryant reply was “I've drawn the money from the bank so I'm covered.” These allegations are extremely serious and are tantamount to fraud and if true implicate Mr. Rhodes in criminal activity himself. The evidence of Mr Moss was highly speculative. He brought a complaint against the Tribunal and was found to be unfairly dismissed. He stated Mr. Rhodes had told him that work had been done at Ms. Bryant’s house and also work was done on Mr. Barber’s driveway coinciding with improvement works done at the respondent’s stations. He concluded from Bryant’s appointment and Mr. Rhodes leaving the respondent in July 2016 having left the respondent under a COT3 agreement, that Mr Rhodes raised these concerns. Mr. Rhodes statement and Mr. Moss statement are inconsistent. The Tribunal concluded that the untested evidence of Mr. Rhodes and the implicit suggestions of Mr. Moss amounted to damaging gossip with no substantive corroboration. 10 December 2022[24]On 10 December 2022 the claimant and six members of the Rising Brook Crew took a day out into Birmingham for a Christmas celebration. Following the event the claimant and others returned by train to Stafford to watch the England v France football World Cup match in Kenny sports bar in Stafford.[25]The claimant provided little detail in his witness statement about these events; the subject matter of the case and informed the Tribunal he was relying upon the descriptions he gave in the interviews and meetings. Under cross examination the claimant stated that the CCTV did not show the full context of interactions; in the bar Jack having removed the claimant’s hat and put it back on the claimant’s head stated “I’m going to kill you fat cunt” and it was at this point that the claimant pushed Jack away; although it is suggested that one was a push another hand out was to retrieve his hat; he stated Jack had invaded her personal space; Jack had slipped his head back and he was suffering from neck pain.[26]A fracas took place both inside and outside of Kenny’s bar for which a complaint against the claimant was made to the respondent. Stuart Ruckledge was appointed to investigate. Complaint[27]Denise Robinson a cleaner at the respondent’s head office revealed to the Chief Officer, Mr. Rob Barber, that a physical assault had occurred on 10 December 2022. She was not present at the time but had heard about it via her son, George Thacker. HR appointed Mr Ruckledge to commence an investigation. Mr. Ruckledge interviewed the complainant Denise Robinson on 15 December 2022 (see pages 63 to 66). Miss Robinson identified the claimant as punching an individual Jack the friend of her son. George she said that the claimant hit Jack because Jack knocked Mr Jenkinson's hat off and it took five or six people to pull Mr Jenkinson off Jack as he's a big bloke she said that Mr Jenkinson threw five to six punches. She alleged the claimant went outside the pub and said “what are you staring at you four eyed cunt”. She alleged outside the pub that the claimant walked up and punched a man; she said it was all on camera she said the claimant was fuelled by drink. In the interview Mr Ruckledge suggested that if he could get the CCTV then he may not have to speak to anybody else.[28]Mr Ruckledge interviewed by telephone Rebecca Kenny on 16 December 2022 (page 71). He recorded the conversation in a telephone note stating that she heard the claimant swearing across the club which alerted her to get the door supervisors to remove the party from the premises. She said she had never heard such foul language coming from a person and wanted him removed just before she realised he had attacked another person in the club. She said she saw another member of the group lifted the claimants hat off his head and put it on his own head; she said she saw him put it back onto the claimant's head. The claimant then launched at the gentleman swinging punches at him the rest of the group split them up and she heard the claimant shout I'm going to kill you you fat cunt” on his way out. She recalled the claimant attending the bar on 16 December 2022 requesting to see the CCTV footage but she declined due to GDPR but asked why the claimant wanted it. He stated the claimant had attended the bar in question to see the CCTV footage because I'm going to lose my job. There was no police complaint made by the Kennys Bar or the alleged victim.[29]On 16 December 2022 the claimant was suspended (see page 69 to 70). The claimant was informed that the reason for suspension was that the respondent believed he was “involved in an accident where physical violence took place on Saturday 10 December 2022 in Stafford town centre”. The letter was incorrectly worded. The claimant was appointed a welfare officer John Kitchener. Although the claimant informed the Tribunal that the allegations were not full; the Tribunal accepts this but at his first investigatory interview on 23 December 2022 at page 95 the claimant accepted that the allegations referred to violent conduct and by this stage the claimant was sufficiently aware that the matter concerned act of physical violence because the claimant contacted Kenny’s Bar on 16 December 2022 himself requesting to view or obtain the CCTV of the night 10 December 2022 stating he was going to lose his job but was informed by someone he would be telephoned back but was not.[30]From 20 December 2022 to the 17 of January 2023. Mr Ruckledge interviewed the following Josh Gamble (page 78 and 133 ), Jack Gant (page 84 and 136), Finlay Jenkinson (page 74 and 129), Jack Ball (page 140) and the claimant (page 94 and 114). Mr. Ball the alleged victim (page 140) stated nobody hit anyone. Mr. Finlay Jenkinson (the claimant’s son) did not witness the claimant hitting anyone; he described what went on as a scuffle inside the bar. Josh Gamble also describes a scruffle. Jack Gant described some trouble in the pub but nothing from their group; he described a group of aggressive males. He described Finlay Jenkinson trying to pull the claimant back but in terms of actual hitting he probably couldn't say if it was hitting or pushing but there was definitely an altercation. He stated if I had to say I'd say it was more the claimant than anyone else and his son was trying to calm it down. He said he did see someone with a bloody nose but he didn't know how it happened he said he thought the claimant was definitely involved but did not see any fists flying but saw a lot of pushing. None of the witnesses recalled the claimant being threatened by Jack Ball inside the bar at all.[31]The claimant was first interviewed on the 23rd of December 2022 (page 94). The stated someone took his hat off his head and he wouldn't give it back to the claimant. The claimant went to grab it off him. The two bouncers told Jack to go home as he was being too boisterous. At the time of the interview the claimant did not assert that Jack was holding pint glasses or making threats to the claimant. Mr. Adam Bowen accompanying the claimant at page 97 stated that it was an act of self defence. He stated there was a scuffle going on outside involving someone called Jack. He said that there was aggression outside the pub. The claimant outside of the bar they were fighting on the footpath. The claimant said Fuck off away we don't want anything to do. He said someone hit him from the left and all three of us hit the wall quite hard; he described as he’s gone down I got kicked and punched and my hands were pinned out somehow so I started fighting to get this hand free. He described a lad in a white shirt taking 3 clear punches at his face then someone else rugby tackled him. He said so I've tried to stand up I think it was his son saying get up and pulling me backwards and son said let's get out of here. Towards the end of that interview Mr Ruckledge disclosed that he had viewed the CCTV so to be open and transparent and stated it clearly shows a male taking your hat off and putting it back on your head as you said but then you launch yourself at him and punch him more than once it's very clear on the camera. The claimant stated that's not how I remember it. The claimant’s representative asked whether it was available for them to view. Mr Ruckledge said not at the moment due to the bars GDPR restrictions but they're looking to releasing it to it.[32]On 12 January 2023 (page 114) the claimant was further interviewed and was shown the CCTV footage. The claimant stated that Jack knocked his hat off and then ran off with it and made derogatory comments to the claimant that he was a “fat old Tommy Shelby”. The claimant then stated he wanted his hat back; the claimant alleged he made threats of putting a glass in my throat. Mr. Ruckledge said on the last occasion the claimant has said there was no altercation other than JB trying to get the hat back. The claimant stated there was a bit of a scuffle when I tried to get it back and then other people jumped in and tried to separate us. The claimant said that he hadn't physically assaulted anyone on that night. The claimant said he was aware of the cultural framework and ethics. Mr Ruckledge stated he had managed to get three pieces of CCTV footage from the bar and showed it to the claimant. Adam Bowen accompanying the claimant noted that the timings were out and there's a lot of the footage missing. The claimant asked whether the chosen parts of the CCTV were selected by Mr Ruckledge who replied “you've seen all the footage I have been given”. Mr. Ruckledge said it had been provided to him by the police licencing it's all he had seen and all he got. The claimant said what was missing was him getting assaulted and there was no sound so that the abuse he was receiving was not recorded. The claimant said there was verbal abuse from Jack Ball about how he was dressed. Mr Ruckledge said he would go back and try to find the footage; he had applied for the CCTV via the police.[33]The claimant asserted that Jack apologised. However, this directly contradicted what Jack Ball said in his interview at page 140; he stated there was no apology.[34]On 17 of January 2023 Mr Ruckledge interviewed the claimant’s son Finlay Jenkinson again page 129. He showed him the CCTV footage. He couldn't recall any of it but remembered pushing his dad back. He said Jack had taken his hat. He said he remembered his dad being very angry because they'd hit me and hit him. Josh gamble was re- interviewed on the 17 of January 2023 at page 133; he was shown the CCTV he was shown a punch but he could not remember that. Jack Gant was re interviewed opt page 136 on 17 of January 2023 he was shown the CCTV he recalled seeing a bit of pushing; he said I don’t really know what was going on but it looks like the claimant was quite aggressive.[35]Jack Ball was contacted by Mr Ruckledge on the 17th of January 2023 at page 140 stating that he and the claimant had been having banter all night based on the fact that he was ex army and the claimant was in the fire service and they had the same sense of humour. They were verbally winding each other up and after the game Jack removed the claimant’s hat and there was a bit of a scuffle and Jack said I've had enough and I'm going home. He said nobody hit anyone[36]On 27 December 2022 the claimant was referred to occupational health see pages 106 to 107. Occupational health report page 143 to 144 dated 18 January 2023.[37]The respondent tried to send the CCTV clips to the claimant see page 169 but because they were too large to be sent via email the claimant was invited to view them The investigation report[38]The investigation report was completed dated 10 February 2023 which recommended that formal action should be considered (see pages 151 to 163). The investigation looked into three main allegations (1)on Saturday 10 December 2022 the claimant assaulted JB inside Kenny bar Stafford by punching him several times (2)on Saturday 10 December 2022 the claimant assaulted a male outside Kenny's bar Stafford punching him in the face and knocking him to the ground causing him to bleed and disfiguring his nose (3)the actions and behaviours of the claimant and the other rising brook crew members presented a breached of the cultural and ethical expectations of the respondent and the disciplinary policy. His summary of the CCTV evidence (page 156) is that JB removes the claimant's cap and put it on his own head for a couple of seconds and then put the cap back onto the claimant's head the claimant reacts by punching JB twice in the face before MJ and JB move out of the camera. The claimant was then restrained by JGM that JB in JMJ attempt to get back together in a threatening and aggressive manner. He concluded but the Core code of ethics provides guidance to every member of the Fire and Rescue service to act in the right way and ensures public trust and confidence relies on us all to demonstrate ethical behaviours everyone in the fire service is expected to follow the code. He concluded that the CCTV evidence shows the claimant demonstrating aggressive and violent behaviour on at least two occasions both inside and outside Kenny's bar on 10 December 2022. The external incident was not a continuation of what happened inside but an altercation with a different group of people. He said the footage was indisputable that it clearly shows the claimant involved in the incident inside Kenny's bar punching JB at least twice despite both MJ and JB pulling being pulled away from each other the pair attempted to get back at each other in an aggressive and threatening manner. the behaviour caused distress to one member of staff who reported it to the bar owner and the door supervisors got involved. He said that in accordance with the respondents disciplinary policy and procedure this could be construed as physical violence or bullying constituting gross misconduct. he noted that in the second interview the claimant talked about JB directing personal insults towards him and threatening to glass him which was not mentioned in the first interview but could have been an indication to the claimant to report his concerns to staff and/or police In the CCTV footage the claimant appears to leave Kenny's bar escorted or accompanied by a door supervisor and interviews support that he found himself in a further confrontation with a second group of males. there are statements supporting the original complaint of a male with a blooded nose outside the bar. there is no CCTV footage to evidence the incident or the perpetrator. Witnesses say that MJ was involved in an incident at the bar. He swore at the group without an altercation as he hit /was hit by someone and then rugby tackled to the floor. Witnesses state the MJ used threatening language and behaviour. In accordance with the organisations disciplinary policy and procedure obscene language and other offensive behaviour could constitute gross misconduct and recommended that the report was considered by the senior manager and HR manager for formal action by way of a formal hearing. there was sufficient evidence for gross misconduct to warrant consideration by a disciplinary hearing. Disciplinary Hearing.[39]On 10 February 2023 the claimant was invited to a disciplinary hearing to take place 9 March 2023 and to be chaired by assistant chief fire officer Michelle Hickmott (see pages 164 to 166). Miss. Hickmott had no knowledge of the claimant. The purpose of the meeting was set out in the invitation letter as follows “to discuss the following allegations one on Saturday 10 December 2022 you assaulted an individual inside Kenny's bar Stafford;2. On Saturday 10 December 2020 you assaulted an individual outside Kenny's bar Stafford; 3. On Saturday 10 December 2022 used threatening behaviour towards members of the staff and public inside Kenny’s bar Stafford”. the claimant was given the right to accompaniment and provided with a copy of the disciplinary procedure and the NFCC code call code of ethics. The claimant was informed that the ultimate sanction could be dismissal.[40]The claimant submitted documents to be included as evidence at his hearing on 6 March 2023 page 198 including medical material about the claimant’s neck issues along with copy of character references including (see pages 201) Alfred Wilson; (page 209) John Kitchener; (page 211) Emma Jones (p212-213) Andrew Bourne page 215. The claimant requested to call the complainant, Di Robinson, Rebecca Kenny, josh gamble, jack grant, Finlay Jenkinson. Mr Adam Bowen confirmed that he had contacted Josh gamble, Jack Gant and Finley Jenkinson to inform that they would like them to attend as the claimant’s witnesses on 9 March 2023. The respondent informed the claimant at page 220 that was it the claimant’s responsibility to ensure that his witnesses attend. The respondent had now power to call members of the public.[41]Mr. Kitchener raised a concern that he had the impression that Sarah Baddeley from HR was threatening or discouraging him from providing a witness statement (see page 4) but nevertheless provide a witness statement. Sarah Baddeley was removed from the process)).[42]The disciplinary hearing took place on 9 March 2023 where Michelle Hickmott, the disciplinary hearing officer was accompanied by Sonia Mills HR. The claimant attended with his FBU representative Adam Bowen. Nathan Shoebridge Tomkinson took notes see page 225 to 248.[43]Mr. Ruckledge presented his report. Ms. Hickmott raised whether the respondent could have obtained a wider timeframe for the CCTV. Mr Ruckledge said “we've got what we've got the police said this is all that they had whether it was overwritten I'm not sure”. Mr Bowen raised concerns about gaps missing in the CCTV so there were points leading up to outside which were not available. He also raised a concern as to how the CCTV was obtained stating at page 227 “it's not around addressing it today but worth discussing and looking at those issues for the future.” He did not suggest that the respondent could not rely upon it as a record of events that took place on 10 December 2022.[44]In the course of the hearing the claimant was given an opportunity to put his version of events in his own words. At page 230, the claimant described this as a low point in his 23 year career. He described that Jack said let's have a look at this magic hat; lets see if that makes me look as fat as you he said it triggered his neck pain he said he was only joking he said I'll slice your throat he said he was in pain along with the threat of physical violence he was holding two empty pint glasses. He said he wanted him out of my personal space; the two bouncers saw him push me and not my hat off the bouncer told him to give his hat back. Jack started kicking off again, he said he saw me in town again it wouldn't end well. The bouncer came across and asked what happened. Someone said he’s going. The bouncer took me across towards the foyer at the back of stairs. He said wait here at moment I don’t want you outside at the same time. I waited with the bouncer for around 4 minutes I walked outside.” He said the video starts with a hat being placed on my head by Jack. It was commented that CCTV showed two punches at Jack; the claimant said he shoves me back; the claimant said he was really disappointed with himself and there was a lot what I've talked about with occupational health every time prior to this situation I have managed to walk away. My tolerance is now reduced and I need to remove myself from the situation I wouldn't want to act like that or be in that situation ever in the future the threat of physical violence I was under the impression that he was going to physically harm me he came right up in my personal space I wanted him away from me and I wanted to leave. The claimant described a group of guys outside the bar who chased him down the alleyway. a lad banged into Finlay and fell to forward to Josh I was going to grab Finn and said watch where you're going he grabbed my wrist and he rugby tackled me to the floor Finn grabbed me up and I was getting up he tried to punch me in the face three times. The claimant said the only person I saw with an injury was the guy that punched me. he had a scratch on his head where is his head hit the wall. The lad who rugby tackled us hit his head too but there was no blood. Two people on the floor and Finlay pulled me off the floor. The claimant was asked whether he recalled punching him. I thought I shoved him as I pushed him my hat fell off I'm sure I went to grab the hat. He didn't recall five or six people pulling him off me. The claimant said I've seen the footage now I've approached Jack and connected with him I'm disappointed that I've reacted in this way I've dealt with challenging people in the past and it's not ended up in this situation the claimant said I generally didn't want to touch him I wanted to remove the threat to all the others in the bar he was threatening to be physically violent. At page 234 the claimant stated that he thought he shoved Jack.[45]The claimants trade union representative conceded there were discrepancies at (page 235) when he first viewed the CCTV. However I can't see any major discrepancies other than the actual connection. The claimant described the contact with Jack as a split second decision. There was no intention to mislead and he didn't remember it like that. He repeated he was disappointed in himself.[46]Witnesses were called at the disciplinary hearing including Jack Gant (page 235); Josh Gamble (page 239) and Finlay Jenkinson (page 242) attended. The claimant’s representative had an opportunity to ask them questions. Jack Gant didn't see any fighting. Josh Gamble could not recall what happened inside the bar. Finlay Jenkinson recalled Jack making threats outside the bar but not inside. The claimant’s representative was allowed to ask questions and there is no evidence from the transcript that he was prevented from asking any questions to witnesses.[47]The claimant was asked about using threatening behaviour towards members of staff and the public inside Kenny’s Bar, Stafford. He recalled the only time he remembered using language is when the guy said he was going to punch me outside. He said he did use language the guy who tried to assault him as he was trying to educate him about wearing glasses.[48]The claimant was asked what would happen if he was provoked in the future. The claimant stated he was ashamed I've been with the service for 23 years I have always been proud of the standards which I've set. It was a complete low point in my career and vocation. he said that he'd spoken to councillors and on this occasion there was a resilience worn away. He accepted under cross examination that none of the witnesses interviewed ever heard the claimant being threatened by Jack Ball inside the bar.[49]Neither the claimant or his trade union representative suggested to the dismissing officer during the disciplinary hearing or the Tribunal hearing that she had been requested by Mr Barber to remove the claimant from the organisation (because he had made a public interest disclosure). In fact, at the Tribunal hearing the Judge put this to Ms. Hickmott who robustly refuted this suggestion.[50]Following an adjournment in the disciplinary hearing the dismissing officer, Ms. Hickmott (see page 247) informed the claimant that she had found the allegation of assaulting an individual inside Kenny's bar Stafford upheld from the CCTV footage that showed the claimant punching someone in respect of the alleged assault on an individual. In respect of outside Kenny's Bar (allegation 2) the dismissing officer did not find this allegation but did find at page 248 that on the 10th of December the claimant used threatening behaviour towards members of the staff and public inside Kenny's bar that the claimant had been aggressive (allegation 3). She stated that this was gross misconduct because all public servants have a trusted position in the community that the fire service should maintain a good reputation hand this over to the next generation. She said she found it really hard to watch that level of aggression physical violence which you have shown to a member of the public. It worried her that the claimant could be provoked to the level which caused this reaction “that really concerns me”. Miss. Hickmott considered the claimant’s character statements and 20 years good service but could not get away from “your actions as an employee of the organisation and leader of the organisation who should be putting communities first you should be setting examples and be a role model. as a service we are trusted people for me the impact and damage of such aggressive behaviour is indefensible In the circumstances having considered she lost trust and confidence in the claimant and determined to dismiss the claimant with the immediate effect. The claimant was summarily dismissed at the end of the hearing. Dismissal letter[51]By letter dated 16 March 2023 (page 250 to 253) the claimant's dismissal was confirmed. Her conclusions in terms of the allegations was that the first allegation she noted that the claimant had been disappointed with himself. The claimant stated that he felt Jack Ball had tormented and provoked him but he was suffering a long standing injury to his neck and felt uncomfortable with the atmosphere in Kenny bar. She found that it was clear that the claimant had used physical aggression and assaulted Jack Ball inside Kenny's bar. The second allegation was not upheld. As for the third allegation, the CCTV footage showed the claimant repeatedly pointing his finger in what was considered to be an aggressive manner; to lunge at Jack Ball having to be restrained by people resulting in a member of Kenny's bar security coming over to intervene. The record of the telephone conversation from the owner of the bar, as an independent witness, referred to the claimant’s demeanour and comments whilst in the establishment. The claimant’s body language appeared intimidating even without sound. The claimant confirmed he did use inappropriate language in the altercation. It was concluded that there were reasonable grounds for believing on the balance of probabilities the allegations were founded. She concluded that the conduct amounted to gross misconduct and brings the Staffordshire Fire and Service Rescue into disrepute this would make “you unsuitable for continuing employment with Staffordshire Fire Rescue”. Miss. Hickmott made reference to paragraph 21 of the main statement of employment particulars of the claimant. In questioning Miss. Hickmott said she did consider different sanctions but the violent conduct of the claimant on the day; the lack of personal accountability of the claimant as to what he had done; the difference of his account with the CCTV obtained and change in account; his failure to simply walk away; lack of acceptance he punched a member of the public in the face she had no alternative option to dismiss even when taking into account the long loyal service of the claimant. Grounds of Appeal[52]On 18 March 2023 the claimant lodged an appeal (see pages 255 to 256). In the appeal letter the claimant relied on three main grounds(a) the outcome was too severe; there are examples of similar events in recent years where others have faced lesser sanctions(b) new evidence – the claimant stated he had acted outside of his character supported by character references and (3) defect in process a member of the HR team interfered with his attempts to gain character references. He further stated that the core principles of the discipline procedure was to improve behaviour whilst he didn't defend the behaviour on this occasion it was a one off incident in an otherwise uneventful career in terms of conduct. he had taken steps since the incident to learn from the behaviour and can give complete assurance that no conduct issues will ever occur again. Appeal Hearing[53]On 29 March 2023 the appeal hearing took place chaired by Glynn Luznyj, accompanied by Sonia Mills HR. The claimant attended with his FBU representative Martin Starkey, FBU. Paris Carruthers took notes page 262 to 275. Neither the claimant or his FBU representative made any representations that Mr. Luznyj was a person unfit to deal with the claimant’s appeal hearing or suggest that Mr. Luznyj had been informed by Mr Barber to remove the claimant from the organisation. It was not put to Mr. Luznyi in cross examination either.[54]Mr Starkey referred to examples in recent years where the individual had come to disciplinary hearings for similar offence and walked away with lesser sanctions. He described a CCTV footage as providing only a short snippet of time with no context. He described another firefighter partner walking away with no sanction where a firefighter assaulted another firefighter's partner. the claimant described his personal circumstances including financial struggles, his ill health being in constant pain with his neck; ill health of his father; he had been going through counselling. Mr Starkey made reference to the fact that the claimant acted out of character. Mr Starkey on behalf of the claimant raised concerns as to how the CCTV footage could have been obtained legally pursuant to GDPR.[55]The claimant's dismissal was upheld at the end of the hearing (see page 274). Mr Luznyj explained that the outcome was not too severe when compared to other similar events in the current climate around Fire Rescue service where there are higher expectations on emergency service workers levels of conduct than that of the members of the public and this is to be considered when comparing events to historic cases. He stated that two previous cases brought to his attention one occurring in 2018 for which he was the hearing officer was different to the present case and the fact that the individual afterwards admitted wrongdoing was honest and expressed deep remorse. In terms of a second example that was some 10 years ago so he concluded comparisons were difficult. He accepted the claimant had experienced physical, emotional and financial stresses but it did not change what happened or how the claimant reacted afterwards. In terms of the suggestion that a member of the HR team had sought to discourage Mr Kitchener from writing a statement they were removed from the process and Mr Kitchener did in fact provide a witness statement to the claimant; so this did not affect the claimant. He concluded that the investigation and disciplinary hearing was thorough and fair. He shared concerns about the claimant's conduct on the night and his integrity in the aftermath. The claimant's own version of events were not honest. he could took into account the claimants length of service and previous good conduct but concluded the claimant had committed a physical assault on the night that damaged the reputation of the service which comes as a result of physical violence to an external complainant. The independent witness from the bar owner was damaging. the fire service had lost trust and confidence from the claimant’s dishonesty during the investigation and his version of events contradicted by the CCTV evidence. the breach of trust goes to the heart of the employment relationship and is destructive. in the circumstances having considered other alternatives to his dismissal including demotion with additional courses and support he did not feel that it would address the concerns about the claimant’s behaviour on the night or repair the trust and confidence in the service.[56]On 5th April 2023 (page 279 -282) the appeal outcome was confirmed in writing. Mr. Luznyj dealt with each of the appeal points in turn. In respect of consistency, he repeated that there were high expectations on emergency service worker’s levels of conduct than that of other members of the public. He stated this is to be considered when comparing events to historic cases. He did not consider them to be comparable cases. it was acknowledged that the claimant had been living with physical emotional and financial stress. He stated in the current climate around the Fire Rescue service there are higher expectations on emergency service workers level of conduct and that of other members of the public and this is to be considered when comparing events of historic nature the 2018 case was differed compared to this one and the way the individual conducted themselves afterwards is relevant and they admitted their wrongdoing, was honest and expressed deep remorse. The individual was awarded a different outcome based upon the merits of the case at that time it was approximately 10 years ago so comparisons are difficult. He accepted that the claimant had physical, emotional and financial stress but it doesn't change what happened nor how the claimant reacted. On the point of concern regarding allegations from the FBU of a member of human resource was influencing character references the service took steps to engage with the individual and they provided a statement declaring they were not trying to undermine the process. They took no active part in the process once the concern had been raised and they did not provide any advice to the hearing officer. This concern has had no material detrimental impact on the process of determining an outcome. He expressed a number of concerns about the claimant's conduct on the night and the claimants integrity in the aftermath. He stated that the claimant’s own versions of events were not honest and they are equal concerns regarding the witness testimonies. There are three issues that remain with your case the physical assault on the night the damage the reputation of the service which comes as a result of the physical violence and external complaint amplified by the fact that the only independent witness testimony came from the bar owner and it was very damaging of your conduct; the loss of trust and confidence from your dishonesty during the investigation with the claimant’s version of events which were clearly contradicted by evidence. The breach of trust goes to the heart of the employment relationship and is destructive of it. Mr. Luznji fully considered alternatives to dismissal including demotion with additional courses and support being mandated to assist the claimant but he did not feel that this would address the concerns about the claimant’s actions on the night nor would it repair the loss of trust and confidence in the claimant representing the service. He found that the decision to dismiss was reasonable and he upholding the decision to dismiss.[57]Under cross examination it was put to Mr. Luznjy that Mr. Anderson’s case was more serious because Mr. Anderson did not receive an apology. Mr. Luznjy said there were differences; the assault took place at a social event between two fire fighters not a member of the public; from his perspective the individual who has assaulted Mr. Anderson was genuinely sorry and expressed deep remorse immediately this was not the case for the claimant who appeared not to be honest when first investigated about what went on and waited to see what evidence the fire service would obtain. It was also put to him that he was aggressive too, citing a historical example when he received a red card for headbutting a fellow fire fighter during a football match. Mr. Luznyi robustly refuted this; he accepted he had received a red card because he was a combative player but he had not headbutted another player. Submissions[58]Both parties were provided with time to prepare closing submissions and were given time to supplement these with oral submissions.[59]The respondent submitted the claimant did not provide information to Mr Hogan or Mr Keeliing but passed on gossip stating to Mr Hogan that the chief and deputy chief fire officers had building works completed on their homes using public funds. The claimant said something similar Mr Keeling but still repeating damaging gossip in the context of a heated discussion expressing his frustration about a management decision. The respondent contended that the claimant's belief in the gossip was not objectively reasonable. Mr Keeling described it as “far end of unlikely even ridiculous” Mr Moss who gave evidence for the claimant agreed that Mr Rhodes the alleged co conspirator was a liar. The respondent stated it was of some significance that the detail of the alleged disclosure given on 4 January 2024 at the preliminary hearing before Judge Maxwell bore no resemblance to what he actually said to Mr Hogan and Mr Keeling on their recollection. Mr. Moss thought it “was brilliant their reputation was damaged”. Further the respondent contended that the claimant had no reasonable belief the disclosure was made in the public interest taking into account the context of the disclosures were his private frustration with management decisions and his fight as a fairly new trade union representative to resist changes. Taking account of Chesterton Global Limited the Tribunal should ask whether the worker believed at the time of making the disclosure whether it was made in the public interest and if so whether the belief was reasonable. He was attacking the organisation; public interest was not in mind.[60]Furthermore, the respondent submitted there was no causative link between the alleged protected disclosure and the reason for the dismissal. The Tribunal should look at the facts or beliefs that caused the decision makers to decide to dismiss Miss. Hickmott and Mr. Luznji had no knowledge about the rumours; the claimant did not raise the fact of disclosures at any time in the disciplinary or appeal process. The respondent has provided clear rationale for the dismissal namely aggressive behaviour. Ms. Hickmott strong expressed outrage that she would take instructions from Mr Barber to dismiss the claimant rather than exercising an independent Judgment. The Jhuti case was applicable in limited cases; here it was submitted that there is absolutely no evidence from which the Tribunal could imply or infer that the two decision makers were aware of the disclosures or in any way influenced by Mr Barber to make a decision that went against the evidence and their own best judgement. In Kong v Gulf international Bank UK Limited 2021 9 WLUK 125 noted that the Supreme Court had itself commented that the facts of duty were extreme and that similar cases will not be common. The EAT held that the general rule that the only motivation attributable to the employees that of the decision maker continues to apply and the principle in Jhuti will rarely be relevant. The respondent contended the principal reason for the dismissal of the claimant was his aggressive and violent conduct in Kenny sports bar on the evening of 10 December 2022 in the presence of his junior colleagues and his subsequent behaviour in obfuscating denying and spinning different versions of events. He showed remorse only insofar as the time and trouble of the organisation was concerned. He admitted in his oral evidence that he was only apologising in the disciplinary hearing because his trade union representative advised him to do so. It was submitted that this is separable from the fact that he had made an alleged protected disclosure.[61]The respondent disputed that the claimant was unaware of allegation. He said violent conduct At the investigation meeting he referred to the suspension letter; there is a clear typing mistake referring to accident showing that he had recently rejected the word accident as a typo saying yes but it's just says violent conduct page 95. The disciplinary policy in force at the time (page 988) states as a matter of principle at paragraph 2.4, the employee shall be kept fully informed of the allegations made against him and will have adequate opportunity to provide an explanation or rebuttal. At paragraph 4.2 the investigatory process refers to you employees requested to attend an investigatory meeting may be given advance warning in time to prepare however this is not always appropriate and is at the service discretion. Often at the start of an investigation it is too early in the fact finding for the allegations to be even formulated. Importantly by the second interview it was clear what the investigation focused on. In respect of the admission of the CCTV footage in Doolin this is an Irish case. No UK court has considered this issue. May be taken into account. Key distinction in Doolin the hospice CCTV was the data owner. There was a potentially a breach but not automatically a breach but considerations as to whether its processing was compatible with original purpose of the collection. The issue here is to consider whether a reasonable disciplinary investigation would consider it relevant. Any breaches of data are a matter for Kenny’s bar data controller or the Police. The employer received the CCTV in good faith. The CCTV does show the claimant punch a member of the public. On seeing it the claimant changed his story and added in he was threatened. Ms. Hickmott took account of the claimant’s physical violence and lack of integrity to dismiss. Integrity was a core part of contract of employment and Code of Ethics.[62]The respondent submitted the claimant’s evidence was rarely answered questions but rather answered by saying something to say as opposed to the respondent’s witnesses who acted with dignity, credibility, and were straightforward. The Tribunal should prefer the respondent’s witnesses. The claimant has gone on the attack with all the witnesses. He made wild allegation designed to cause damage to the respondent’s organisation and individuals. Such as personal attacks on Mr. Luziyj and Mr. Ruckledge. The claimant’s conspiracy theory suggested that the witnesses were corrupt which is offensive.[63]In respect of witness tampering see page 168 Ms. Baddeley did make a concerning remark to Mr Kitchener; there was an internal investigation on 14 February 2023. The respondent removed her and the Head of HR took over and Mr. Kitchener wrote a glowing reference for the claimant. This procedural defect has no impact on the fairness of the process; see Taylor v OCS. The Tribunal should look at the process as a whole; it was. The respondent was reasonable to treat this as misconduct; violent behaviour in front of junior colleagues outside work in front of members of the public. The claimant is aware of his responsibilities as a manager and employee of the respondent. This conduct brought the service into disrepute. By reason of his conduct in the aftermath and lack of honesty the respondent has no trust and confidence in him. His 23 years of excellent service; character references and mitigation were considered but he simply not be trusted. He acted in breach of clause post as did not come clean and made excuses. He acted in breach of paragraph 21 of his contract of employment code of conduct ethics and cultural framework. The claimant raised “comparators”. Mr. Luznji considered these but did not consider them true comparators due to the present time where core of ethics was utmost importance and there were different facts and mitigation. Further he contributed to his dismissal 100% and the Polkey deduction should be 100%[64]The claimant’s representative submitted the claimant answered succinctly and was open and honest. He did not avoid answering questions. Integrity is a factor when the Tribunal looks at comparators and it was therefore important to consider others conduct and sanctions.[65]My submission is that this dismissal was in the context of a public interest disclosure cover up culture and the claimant exposed this. What he had real concerns over. He worked as a trade union member and has a passion for the job. He was fully aware of cuts which potentially hindered the safety of the public. The crews were reduced and the claimant had grave concerns for health and safety of the public interest concerns. He also had real concerns and a reasonable belief that there was a diversion of public funds for the use of private property of senior people which seriously concerned him in the public interest. The claimant’s belief was reasonable; Mr. Hogan and Mr. Keeling did not appreciate what the claimant told them were public interest disclosures but by disclosing to them the claimant did make a public interest disclosure. The claimant believed his concerns tended to show breaches and his belief was reasonable; see Babula v Waltham Forest.[66]The claimant put his concerns to Mr. Keeling to Mr. Hogan and only assumed they would take them seriously. The claimant’s representative read from his detailed written submission referring to the case of Jhuti ; as the hidden reason was principal reason.[67]The claimant did object to the consideration of the CCTV evidence relying on the Doolin case; it had been processed inappropriately; the claimant’s complaint was upheld. The claimant submitted Mr. Ruckledge got it by whatever means possible and the dismissing officer received heavily edited CCTV which placed the situation out of context. In the CCTV the claimant was as an aggressor whilst in reality in full context he was a defender. He removed himself from that environment but was threatened with glass and with a knife. It was not two punches but one punch and a second to collect his hat. There was a failure to consider other sanctions such as dismissal; dismissing from one role but keeping another. Other individuals had received lesser sanctions. Others in the Brigade had acted aggressively too. Lesser options were available; this claimant had an unblemished 23 year record.[68]Ms. Hickmott did not really consider comparators as she said none were available from HR. Mr. Anderson was subject to attack; the assailant was not dismissed. Ms. Hickmott has limited knowledge of claimant and was chosen as the least experienced. The Law Protected Interest Disclosure 52. 103A Protected disclosure/automatic dismissal An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure. 53. Qualifying disclosures; under section 43B(1) ERA breaks down into five elements see Williams v Brown UKEAT/0044/19 (1)Has there been a disclosure of information? (2)Did the claimant believe that the disclosure was made in the public interest? (3)If so, was that belief reasonably held? (4)Did the claimant believe that the disclosure tends to show one or more of the matters listed s.43B (1)(a)-(f)? (5)If so, was that belief reasonably held? 54. A disclosure must have sufficient factual content and specificity; Kilraine v London Borough of Wandsworth (2018) EWCA Civ 1436. It is crucial for the Tribunal to identify the information disclosed by the worker which is said to amount to a qualifying disclosure “this is crucial because section 43B(1) requires the Tribunal to go on to consider whether the claimant's belief about that information fell within the section and if the conclusion is that there was a qualifying disclosure, whether the disclosure of that information was a or the reason for the treatment complained of” see Twist DX v Armes UKEAT/0030/20/JOJ 55. A disclosure of information can take place when the information being communicated is already known to the recipient see Parsons v Air Plus International Limited (UKEAT/0111/17) 56. What must be established in each case is that the claimant has a reasonable belief that the information disclosed tends to show one of the matters in section 43B i.e. that the information disclosed tended to show that someone had failed or was failing was likely to fail to comply with one of the legal obligations set out there. “Tends to show” is a lower burden than having to believe the information does show the relevant breach or likely breach see Twist DX Limited v Armes (UKEAT/0030/20). The word “likely” appears in the section in connection with future failures only, not past or current failings where what is required is that the claimant reasonably believes that the information disclosed tends to show actual failures. 57. The question of what a worker reasonably believes involves two elements; first whether the worker subjectively believed at the time of the disclosure that the disclosure was in the public interest and second, if so, whether that belief was objectively reasonable; see Chesterton Global v Nurmohamed (2018) ICR 731. The Court of Appeal approved guidance formulated by counsel as to the matters that may be relevant to assessing the reasonableness of the claimant's belief in the matter being a matter of public interest which included the following(a) the numbers in the group whose interests the disclosure served;(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people and all the more so if the effect is marginal or indirect(c) the nature of the wrongdoing disclosed disclosure of deliberate wrongdoing is more likely to be in the public interest and the disclosure of inadvertent wrongdoing affecting the same number of people;(d) the identity of the alleged wrongdoer as Mr lad he put it in his skeleton argument the larger or more prominent the wrongdoer in terms of the size of its relevant community IE staff suppliers and clients the more obviously should a disclosure about its activities engage the public interest though he goes on to say that this would not be taken too far. In relation to the public interest the question is whether the worker reasonably believed that making this disclosure was in the public interest as opposed to whether the worker reasonably believed they were talking about a topic which in general terms was in the public interest; Carr v Blomberg LLP 2022 EAT 49. The reasonableness of the workers belief is determined on the basis of information known to the worker at the time the decision to disclose is made see Darnton v University of Surrey 2003 ICR 615 58. In deciding the reason or principal reason for dismissal the Court of Appeal stated in Abernethy v Mott 1974 ICR 323 at 330 refer to “the set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee”. 59. The claimant must raise a prima facie case that the sole or principal reason for his dismissal was that he had made protected disclosures. If he does then it is for the respondent to prove that the protected disclosures were not the sole or principal reason for the dismissal see Dahou v Serco Limited (2016) EWCA Civ 832. Once the potentially fair reason for dismissal is established the tribunal must consider where it was very new circumstances taking into account the size and administrative resources of the employer to dismiss the employee for that reason. 60. Pursuant to Section 98 (1) of the Employment Rights Act 1996 (the ERA) states that an employer has the burden of showing the reason for the dismissal and that the reason falls within subsection (2) or some other substantial reason of a kind so as to justify dismissal. 61. In relation to the fairness of the dismissal, section 98 (4) of the ERA, states 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 reasons shown by the employer (a) depends on whether the in the circumstances including the size of the administrative resources of the employees 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. 62. The Tribunal must not substitute its judgement for that of a reasonable employer in deciding whether or not the employer acted reasonably for the purpose of section 98 (4). The Tribunal should ask itself whether or not the decision to dismiss fell within the range of reasonable responses of a reasonable employer. A harsh decision to dismiss can still be a fair one. 63. In respect of a conduct dismissal according to the case of BHS v Burchell 1980 ICR 303 the tribunal must consider a threefold test; (a) whether the employer held a genuine belief in the employee’s misconduct (b) whether the employer had in his mind reasonable grounds upon which to sustain that belief; and (c)at the stage at which the employer form that belief on those grounds he had carried out as much investigation into the matter as was reasonable in the circumstances. 64. In Sainsbury's Supermarkets v Hitt 2003 IRLR 23 the Court of Appeal ruled that the relevant question is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted. In considering procedural fairness the tribunal can have regard to the ACAS Code of Practice of 2015 on disciplinary and grievance procedures which sets out the basic requirements of fairness applicable in most cases. 65. In the Court of Appeal case of Taylor v OCS Group Limited 2006 IRLR 613 it was stressed that the task under section 98 (4) of the Employment Rights Act 1996 is not only to assess the fairness of the disciplinary process as a whole but also to consider the employer's reason for the dismissal as the two impact on each other. When an employee is dismissed for serious misconduct, a Tribunal might well decide that notwithstanding some procedural imperfections the employer acted reasonably in treating the reason as sufficient to dismiss the employee. Further where misconduct is of a less serious nature so the decision to dismiss is near the borderline the Tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. Defects in the original disciplinary hearing and pre-dismissal procedures can be remedied on appeal. It is not necessary for the appeal to be by way of a rehearing rather than review but the Tribunal must assess the disciplinary process as a whole and where procedural deficiencies occur at an early stage the Tribunal should examine the subsequent appeal hearing particularly its procedural fairness and thoroughness and open mindedness of the decision maker. Polkey 66. A Polkey deduction is the phrase used in unfair dismissal cases to describe the reduction in any award for future loss to reflect the chance of the individual would have been dismissed fairly in any event see Polkey v AE Dayton Services Limited 1987 IRLR 50. The Tribunal should consider if a fair process had occurred would it have affected when the claimant would have been dismissed and by what percentage chance that a fair process would have still resulted in the claimant's dismissal. In making this consideration the Tribunal shall consider any potentially relevant evidence in accordance with Software 2000 Limited v Andrews 2007 IRLR 568. In the Court of Appeal case of O'Donoghue v Redcar and Cleveland Borough Council 2001 EWCA Civ 701 the significance of the procedural or substantive distinction when hearing a case was downplayed. In the decision Gove v Property Care Limited 2006 EWCA Civ 286 the Court of Appeal rejected the suggestion that the Polkey principle is narrowly confined only two instances procedural unfairness Buxton LJ said that instances of procedural unfairness such as occurred in the Polkey case are but one kind of case to engage the application of section 123 (1) of the Employment Rights Act 1996 Lord Justice Buxton held that section 123 (1) enjoined the Polkey principle to be of much wider application in cases of procedural unfairness. Contributory Fault 67. The Tribunal has a discretion to reduce the basic and compensatory award pursuant to a finding of contributed conduct. The basic award may be reduced Pursuant to section 122 (2) of the employer rights act 1996 when the tribunal considers that any conduct of the complainant before the dismissal with such as it would be just and equitable to reduce or reduce further the amount of the award to any extent. In respect to the compensatory award pursuant to 123 (6) of the ERA 1996 where the tribunal finds that the act was to any extent caused or contributed to by any action of the complainant the tribunal shall reduce the amount of the compensation award by such proportion as it considers just and equitable. In consideration of the reduction of the compensation award the tribunal must find that the conduct of the claimant was culpable and blameworthy and must have caused or contributed to the claimant's dismissal. Such conduct need not amount to gross misconduct Jagex Limited v McCambridge UKEAT/0041/19. 68. Where there are significant overlaps between the factors taken into account when making a Polkey deduction And when making a deduction for contributory conduct the tribunal should consider expressly whether in the light of that overlap it is just and equitable to make a finding of contributory conduct and if So what its amount should be to avoid the risk of a claimant being penalised twice for the same conduct; see Lenlyn UK Limited v Kular UKEAT/0108/16. In assessing contribution the tribunal should consider a the relevant conduct be whether it is objectively culpable or blameworthy C consider where that caused or contributed to the claimant's dismissal and if so determined to what extent it is just an export to reduce any award. Credibility
The Law
[69]Regrettably a significant amount of the evidence relied upon by the claimant was irrelevant to the issues to be determined by the Tribunal (as set out at pages 46 to 47) The claimant described in detail about various push backs he had made against senior managers wishing to introduce policies which he believed were outside the Grey Book standard terms and conditions in the course of his role as a trade union representative. Under cross examination the claimant stated he was unfairly dismissed because he made a public interest disclosure and because of his trade union activity. However, the fact he was a trade union member or involved in trade union activities and was dismissed by reason of that was not identified as a claim or potential issue at the Preliminary Hearing by the claimant’s representative before Employment Judge Maxwell on 4 January 2024. In the circumstances this did not form any part of the case before this Tribunal.[70]The claimant and his witnesses made very serious allegations made against the respondent’s witnesses which the Tribunal found was an attempt to smear the professional integrity of witnesses such as the investigating, dismissing officer, appeal officer and the Chief Officer. The claimant made very serious allegations against Mr. Ruckledge in cross examination namely that he had actually lied to the SFRS to obtain a conviction. Mr. Ruckledge denied this stating that was absolutely incorrect. The allegation was put to Mr. Ruckledge with no corroborative evidence. It was suggested that Mr. Ruckledge assaulted another officer at a station who had slept with his partner; Mr. Ruckledge said this was untrue. It was suggested that Mr. Ruckledge was picked by Mr. Barber to investigate because of his friendship with PC Gallimore who obtained the CCTV from the bar. Mr. Ruckledge explained to the Tribunal that he researched who was in charge of licensing in the local police force; established it was PC Gallimore and made a request via him to have access to the CCTV. The Tribunal found Mr Ruckledge to be an honest witness who was undertaking his role diligently to fact find. There was no hint in the course of the investigation of Mr. Ruckledge of being anything other than an objective investigator. At the claimant’s interview on 12 January 2023 Mr. Ruckledge is recorded at page 119 of asking about the claimant and if he needed anything else in terms of welfare; they are not the words of someone who had a partisan view or who was trying to get the claimant.[71]The Tribunal found that the claimant and his witnesses made very serious and wild allegations against the respondent based on gossip without a shred of independent evidence to corroborate and substantiate serious allegations. The claimant’s case developed in the course of this hearing was that there was conspiracy in the sense that Mr. Barber, Chief Fire Officer, the subject of one his alleged disclosures had given instructions to remove him from the organisation; he believed that was the reason why Mr. Ruckledge was selected as investigating officer because of his links to the police so that he could have a means of obtaining the CCTV evidence in the bar; he believed Mr. Barber had told the dismissing officer and appeal officer to remove him. At no time did he or his trade union representative raise any concerns during the investigation or disciplinary process that any of these individuals should not have involved in the disciplinary process nor suggest that Mr. Barber had sought to remove him. Furthermore, in the course of the process, he did not nor did his trade union representative ever suggest that he was investigated; dismissed or had his appeal refused by reason of the fact that he made a public interest disclosure. This allegation first appeared in the ET1 dated 16 August 2023 where it was stated victimisation due to disclosure in the public interest of illegal activities in the claimant’s place of work. Particulars of the claim were clarified in the course of the preliminary hearing before Judge Maxwell on 4 January 2024 as set out at page 46 and 47; the names of who the claimant disclosed to was clarified at a later date as being Dermot Hogan and Dan Keeling. The claimant stated that he was advised throughout to apologise to keep his job. The Tribunal having heard the witness evidence of the respondent reject this contention.[72]The claimant informed the Tribunal although he accepted that he was contractually bound to maintain a high standard of conduct and discipline both on and off duty and that the Cultural Framework in place at the time expected him to maintain integrity; he asserted that the Core Values were not embedded into policies at the time and in fact the respondent deliberately kept him suspended for 3 months in order to ensure they were in force at the time of the dismissal; he stated by the time he was dismissed they had not been so embedded. This allegation was not put to the respondent’s witnesses but again the Tribunal finds it was a wild allegation unsubstantiated with evidence.[73]The Tribunal was unpersuaded by the claimant’s conspiracy theory and determined that the claimant had still not taken full ownership of the assault he committed on the night of 10 December 2022 which was irrefutable as shown on the CCTV recording.[74]The claimant’s case is that the respondent obtained the CCTV evidence in contravention to GDPR; a complaint which was upheld by the IPCC. It was on this basis he stated that the respondent should not even have taken this into account although the clips showed him throw two punches at a member of the public in a bar and point his finger on a number of occasions. He felt that the CCTV was incomplete and edited so did not provide context. The Tribunal rejected this assertion. The investigating officer Mr Ruckledge had contacted PC Gallimore who he had identified from a search was in charge of licencing. PC Gallimore obtained the CCTV. However, the fact is that the CCTV did show the claimant punching a person twice and pointing his finger.[75]Mr. Anderson was an honest witness who informed the Tribunal about his experience of being physically assaulted by a colleague, Tim Bullock in December 2018 when he was punched outside a pub in Stone whilst recuperating from a hip operation. Another colleague Tim Plant lead the assailant away. He was not suspended from work and in fact was transferred to another station and demoted to one rank, but he was not dismissed. Mr. Anderson’s evidence which the Tribunal accepted is that Mr. Plant did not apologise to him. The Tribunal accepted Mr. Luznyj’s evidence that the situation was different to the claimant’s because it concerned two colleagues who fell out in the public house and that he determined Mr. Bullock was remorseful and that the sanction he imposed was in his opinion proportionate at the time.[76]Ms. Andrea Rhodes was an honest witness who described how in April 2021 her partner and fellow colleague had physically assaulted her and despite confiding this to her manager, her former partner was appointed as her welfare officer whilst off sick. Her former partner was not subject to any disciplinary action. She was unsure whether Ms. Luznyj was aware of this situation but would be surprised if he was not. The Tribunal having heard the evidence of Mr. Luznyj determined that he was unaware of Ms. Rhodes situation and that Ms. Rhodes had told her manager in confidence.[77]Mr. Moss gave evidence. He had successfully won an unfair dismissal claim before the Tribunal. He provided a significant witness statement with attachments alleging all sorts of impropriety in respect of officers in the brigade. These allegations were not relevant to the Tribunal’s determinations. It appeared to the Tribunal that it was his belief and idea that the claimant was dismissed for repeating the suggestion that the respondent had paid for works done at two senior officers properties. He conceded in evidence that Mr. Rhodes who he relied upon as the source of the information had provided inconsistent evidence in his written representation to the Tribunal and was a liar.[78]The claimant submitted written representations of other individuals but mostly contained irrelevant evidence.[79]The Tribunal found Mr. Ruckledge to be an honest witness and diligent in his role of fact finding in the disciplinary investigation. He did request more CCTV footage noting that there was an approximate gap of some 10 minutes between the CCTV inside the bar and outside but none was provided to him. He was not asked whether he believed he was selected because he had a relationship with PC Gallimore. His evidence was that he had never met PC Gallimore before and did not know him; he searched who had a licence in the Staffordshire Police and obtained PC Gallimores’ name via that research. The Tribunal did not consider that Mr. Ruckledge did anything but the task he was required to so namely find the facts and maintained a balanced and objective view of the evidence.[80]The Tribunal found Ms. Hickmott to be honest and a very impressive witness who took her role of considering disciplinary action very seriously realising the impact it could have upon the claimant and his career. The claimant’s case was not put to her namely that she had been told by Mr. Barber the chief officer or that she dismissed the claimant by reason of him making a public interest disclosure to Mr. Hogan and Mr. Keeling. In the circumstances the Judge put these point to Ms. Hickmott who refuted the suggestions entirely. The Tribunal found Ms. Hickmott to be a person with high professional integrity and was unpersuadable; she not know the claimant at all and the tribunal accepted her evidence she had no knowledge that he had made any alleged public interest disclosures. She would not have been told what disciplinary sanction to impose.[81]The Tribunal found Mr. Luzjyj, the appeal officer to be an honest and an impressive witness who considered the claimant’s appeal carefully.[82]Conclusions Protected interest disclosures (1)Has there been a disclosure of information? The Tribunal was satisfied that the claimant disclosed information with sufficient factual content and specificity to the respondent as required in accordance with Kilraine v London Borough of Wandsworth (2018) EWCA Civ 1436. Although the Tribunal prefers the evidence of both Mr. Keeling and Mr. Hogan in terms of timing of the disclosures and what was said in preference to the claimant’s recollection which timed the disclosures in about September 2022, the Tribunal has found that(a) the claimant informed Mr. Keeling in June 2022 the claimant Rebecca Bryant then chief fire officer had worked on her property which was paid by the service. This occurred on 29 June 2022 after an attending an instant which the claimant was also present at as the officer in charge of Newcastle's fire appliance. Mr Keeling attended as the tactical advisor. The claimant also stated that the then deputy chief fire officer rob Barber now chief fire officer had tonnes of stone delivered either to his house or to Ipstones fire station for his house again paid for via the service. The claimant stated he'd been told this by Ralph Rhodes the former estates manager(b) The claimant stated that Mr Moss had told that the claimant that Mr Moss was going to and had reported the then chief officer Rebecca Bryant and deputy chief officer rob Barber for abuse of their position in receiving services and goods they were not entitled to he did not offer any details. The Tribunal concludes based on these finding that claimant disclosed information with sufficient factual content and specificity to the respondent. 82. Did the claimant believe that the disclosure was made in the public interest and if so, was that belief reasonably held? At the material time, the Tribunal is not satisfied that the claimant when making the disclosures believed that the disclosures were made in the public interest and held that belief reasonably. In making these determinations the Tribunal takes into account the context of the disclosures. The claimant’s disclosures to Mr Keeling were in the context of frustration of potential changes to terms and conditions via a ballot he was unhappy about. Further the conversation with Mr. Hogan was in the context of Mr Moss’s recent dismissal and that Mr. Moss was going to report chief officer, Bryant and chief officer, Rob Barber for abuse of their position. The claimant reported this matter to Mr Hogan in the context of revelations to be made by a recently dismissed and obviously disgruntled employee. The Claimant was in a position of responsibility as a manager. There was no evidence that the claimant followed up whether his concerns were taken forward. Further, the claimant could have exercised his right under then whistle blowing policy to have raised serious and genuinely held concerns detrimental to the public interest by anonymously raising his concern via that policy. He failed to do so. The Tribunal was not persuaded that the claimant had not had the training of the whistleblowing policy or that he didn’t want to put his head above the parapet on his own; the policy states the process can be anonymous. 83Did the claimant believe that the disclosure tends to show one or more of the matters listed s.43B (1)(a)-(f)? and if so, was that belief reasonably held? The Tribunal repeats its findings above and as is not satisfied that the claimant believed the disclosure tended to show one of the matters in section 43B or that the belief reasonably held take into account the context of the disclosures and the fact that the claimant failed to report this pursuant to the anonymous whistle blowing policy.[83]Even if the Tribunal is wrong in its conclusions, the difficulty with the claimant in making his claim of automatic dismissal by reason of a public interest disclosure in this case is the issue of causation. Ms. Hickmott who determined that the claimant should be dismissed and provided a detailed and cogent rationale as to her findings, did not know that the claimant had made these disclosures and so they cannot have been any part of the reasons for his dismissal. The Tribunal noted the robust rebuttal by Ms. Hickmott as to any suggestion that Mr. Barber had instructed her to remove the claimant. The Tribunal finds as a fact that Mr Barber did not so instruct her because had he done so Ms. Hickmott would have reported this. The Tribunal accepts the unchallenged evidence of Mr. Luznji that he was unaware that the claimant had made such comments until after the claimant submitted his ET1. Accordingly, the claim for automatic unfair dismissal by reason of making public interest disclosures fails. Unfair Dismissal The reason[84]The Tribunal is satisfied that the respondent has established on the evidence that the principal reason for the claimant’s dismissal was for the admissible and potentially fair reason of misconduct. Following a complaint of a physical assault, the respondent embarked on an investigation. As part of the investigation they interviewed the claimant on 2 occasions; interviewed members who were present on the night and obtained CCTV evidence. The investigator took into account a telephone record of a conversation with the bar owner. The Tribunal accepts Ms. Hickmott’s evidence that she took this material into account along with the claimant’s contractual terms to maintain a high standard of conduct and discipline both on and off duty and take care to uphold the good reputation and prestige of the fire service at all times along with this service is called code of ethics need which states the need for a high standard of behaviour at all times when determining to dismiss the claimant. The Tribunal rejects the suggestion that Miss. Hickmott or Mr. Luznji were both told to remove the claimant from the organisation by the Chief Officer Mr. Barber. Fairness[85]The Tribunal considers the limbs of the BHS v Burchell test and determines as follows. The rationale for Miss Hickmott's decision to dismiss the claimant is detailed in her letter of dismissal and in particular (pages 251 to 253). The Tribunal determined that the respondent formed a genuine belief in the claimant’s misconduct having taken into account the investigation report consisting of witness statements and by viewing the CCTV evidence which showed the claimant punching Jack Ball in the face on two occasions inside Kenny's bar Stafford on 10 December 2022. Further the claimant admitted at the disciplinary hearing he was disappointed in himself. The Tribunal found the dismissing officer held a genuine belief the claimant had used threatening behaviour towards members of staff and public inside Kenny spa Stafford having considered the CCTV and taken into account Ms. Kenny’s account. Miss. Hickmott recognised there was no sound on the CCTV footage and comments could not be corroborated in respect of threatening language but she concluded that the claimant's behaviour was of a threatening nature where it the CCTV repeatedly showed the client pointing his finger in an aggressive manner and lounging at Jack Ball and having to be restrained by people namely the security who came over to intervene the record of the telephone conversation from the end of the bar as an independent witness refers to the claimants dominion comments as intimidating and aggressive.[86]The Tribunal determined that Miss Hickmott formed her genuine belief in misconduct on reasonable grounds. The physical assault inside Kenny's bar was evident and irrefutable from the CCTV evidence. The allegation of using threatening behaviour towards members of the staff and public inside Kenny's bar was indicated from pointing his finger and take into account for the record of the owner of the bar. Use of the CCTV[87]The claimant submitted that the CCTV was unlawfully obtained via GDPR so should not have been considered by the respondent in the disciplinary hearing. The respondent relied upon the Irish case of Commissioner v Cormac Doolin which determined that CCTV at work used for the purpose of checking misconduct of an employee when its sole purpose was for safety and security of employees, any further processing must be compatible with the original purpose for processing. Further in respect of the case of Go Ahead Transport Services Dublin Limited v Thomas Gifford (2022) 3 JIEC 2404 it was held that use of the CCTV footage outside the competence of the court. Any alleged breaches of the claimant’s rights was a matter for a different forum and not for the Employment Tribunal.[88]The Tribunal distinguished the case of Doolin because this case concerned CCTV at work with the sole purpose of security of employees; employees were not informed it could be used for the purposes of disciplinary action against them.. The claimant’s case concerns CCTV in a third party premises. How it was obtained is not a matter for this Tribunal following the Go Ahead case. Mr. Ruckledge was justified in seeking the CCTV as contemporaneous evidence of the events on 10 December 2022 because it was at the heart of the investigation so to check the accuracy of the complaints made against the claimant and the claimant’s account of events.[89]The Tribunal concluded that the investigation in this case was reasonable in the circumstances. Mr Ruckledge requested the CCTV imagery from the police having googled researched who was responsible for licencing at the Staffordshire Police. The respondent had no control over the amount of CCTV imagery obtained. The claimant contends as it was illegally obtained namely not in accordance with GDPR regulations that the respondent was not entitled to view it. The tribunal rejects that contention. The respondent is not held to the same account as a criminal investigation or court. The CCTV imagery which is contemporaneous material of events on the date is relevant particularly in the context of other witnesses who were part of the claimant’s team and in a more junior position to the claimant who were unable to recall details of the evening it was pertinent for the respondent to view CCTV. The claimant at opportunity to view the CCTV and provide commentary to it. In respect of the lack of the full CCTV; it is accepted by the respondent that there is missing footage from outside of the bar. Miss. Hickmott enquired with Mr. Ruckledge about this who said it was all that the respondent had received. In the context of inside the bar, which is where Miss. Hickmott made findings of fact of inappropriate behaviour by the claimant, that is evidenced on the CCTV. The Tribunal determined that the lack of the whole CCTV was effectively a red herring.[90]Relevant witnesses who attended the evening were interviewed by the investigator. The claimant and his trade union representative had an opportunity to question witnesses who attended the disciplinary hearing included Finley Jack Jenkinson the claimant son Josh gamble and Jack Gant. The Tribunal rejects the suggestion that the claimant or his representative were prevented from asking relevant questions. The investigator also took a note of a telephone communication he had with the owner of Kenny's bar. The Tribunal determined Mr. Ruckledge was an honest witness and his record of the conversation was accurate; the fact it was not formally recorded the tribunal determined did not detract from the cogency of the content of the statement which corroborated in part the CCTV. The Tribunal also take account that bearing in mind that the respondent has no powers to force George Thackett son of Di Robinson to give evidence; he did not wish to co-operate.[91]The claim was interviewed on 2 occasions in the course of the investigation and provided his account of events on 10 December 2022 at the disciplinary hearing. The Tribunal finds that Ms. Hickmott’s assessment that the claimant's account changed from his first to his second interview as correct. The claimant suggested in detail on his second interview that he was threatened. None of the other witnesses evidenced these threats. The tribunal also determines that the dismissing officer formed the view that she could not trust Mr Jenkinson first because he alleged he was provoked or acting in self defence inside the bar which was not apparent from the viewing of the CCTV and was not supported by the witnesses who were present in the bar. Further Miss. Hickmott formed a reasonable view that he'd failed to take his personal responsibility for his actions. in his first interview before CCTV had been obtained Mr Jenkinson denied the allegations. when he saw the CCTV he admitted some of the allegations and presented another version of events at the hearing before Miss. Hickmott. Mr Jenkinson referred to coming into contact with the individual each demonstrated a lack of acceptance that he'd punched a member of the public in the face.[92]In the circumstances the Tribunal concludes that Miss. Hickmott formed a genuine belief in misconduct on reasonable grounds following a reasonable investigation in the circumstances which breached the claimant’s contract at paragraph 21 and was against the core values. Procedural Deficiencies[93]The claimant relied upon the fact that he was unaware at the time of his suspension and investigation of the full details. The claimant’s suspension letter was inaccurately worded as an accident involving physical violence. The Tribunal notes that the claimant was aware of the nature of the concerns by reason of the fact he attempted to contact the bar following his suspension to see the CCTV saying he thought he might lose his job. By the time the claimant was invited to the second investigation meeting he was shown the CCTV and the allegations were made clear at the stage of the invitation to the disciplinary hearing and on receipt of the investigation report. The claimant did have sufficient knowledge of the allegations by the time of the disciplinary hearing and had viewed the CCTV in January 2023 at the second interview., The Tribunal takes note that het disciplinary policy at paragraph. Further pursuant to paragraph 2.4 it states the employee shall be kept fully informed of the allegations made against him and will have adequate opportunity to provide an explanation or rebuttal. Under paragraph 4.2 investigation it is stated employees requested to attend an investigatory meeting may be given advance warning and time to prepare however this is not always appropriate and is at the services discretion. Looking at the overall process following Taylor v OCS Group the process was fair.[94]Following the claimant’s welfare officer raising the issue about Ms. Baddesley contact with him about weighing up the pros and cons of providing a character reference for the claimant, she was removed from the process. Mr, Kitchener gave a statement in support of the claimant. The actions of Ms. Baddesley did not affect the process. Sanction[95]Miss. Hickmott determined having considered the evidence lengthy service evidence of mitigation namely the claimant had neck problems at the material time and the character references which gave the claimant a very positive record that dismissal was an appropriate sanction. The respondent had made clear its expectations in relation to staff behaviours and responsibility to commitment to upholding those standards as a trusted member of the community by way of the contract of employment cultural framework and core code of ethics. Miss. Hickmott determined that the claimant's actions on 10 December were not in line with the values of the Fire Rescue services. Her finding was that physical violence against a member of the public goes directly against all that the respondent stands for the first ethical principle in the core code of ethics is putting communities first and contrary to the commitment to treat people with kindness and respect. Further the claimant was in a leadership position and had a responsibility to set an example in particular with individuals on that night who were in his team and more junior. Further she lacked trust and confidence in the claimant’s recognition and ownership of what he had done on the night.[96]The Tribunal's role is not to substitute its view for that of the employer; the Tribunal's role is to consider whether dismissal was a sanction which fell within the bounds of response responses of a reasonable employer. Other sanctions were considered by the dismissing officer prior to dismissal namely demotion but did not consider that was appropriate bearing in mind the lack of trust and confidence in the claimant as to how he behaved on the night and his conduct in the aftermath. She did weigh the long loyal service of the claimant and the positive character references.[97]Mr. Luznyj did consider other cases in terms of inconsistent treatment but determined that the cases were not comparable relying upon the historic nature of the other cases and in his opinion difference of accountability of the alleged assailant and remorse. The Tribunal notes that it is difficult in the context of unfair dismissal to compare other cases at a different time periods with different evidence and mitigation as indicated in the case of Hadioannous v Coral Casinos so to find cases are truly parallel. Mr. Luznyj did take these submissions into account but rejected them. He was entitled to do so from the view he found in terms of the difference in the cases and the difference in the time period and introduction of Core Values.[98]The Tribunal finds that the decision of the respondent taking into account the long service of the employee plus his clean disciplinary record, character references and mitigation might be considered to be a harsh decision but the Tribunal finds it did not fall outside the reasonable response of a reasonable employer faced with the circumstances of a manager in a position of responsibility committing a physical assault on a member of the public in contravention to his contract of employment and Core code of ethics and failing to take full accountability for this actions.[99]The claim of unfair dismissal is not well founded and is dismissed. Polkey[100]For completeness the Tribunal deals with Polkey and contribution. Taking into account the importance to which the respondent attached to officers acting to a high standard outside of work, in accordance with clause 21 of the claimant’s contract of employment; the core ethics and values and cultural framework, the Tribunal determines that the respondent would have dismissed the claimant summarily even if a different procedure was adopted. Contributory fault[101]The claimant was shown to be lunging at a member of the public and punching him on two occasions. This was in breach of clause 21 of the claimant’s contract; the core ethics and values and cultural framework. Further there was reluctance on the part of the claimant to take full accountability of his actions. The Tribunal finds that the claimant was guilty of blameworthy conduct and that this conduct contributed 100 % to his dismissal.