Mr A Plummer v Blanc Aero Industries UK Ltd: 1308533/2023

EMPLOYMENT TRIBUNALS

Case No 1308533/2023

Between

Mr. A. PlummerClaimant

BLANC AERO INDUSTRIES UK LIMITED HELD AT: BIRMINGHAMRespondent

Before

Employment Judge Manley

In person for claimant

Date 10 December 2025

JUDGMENT

[1]The Claimant’s claim for unfair dismissal is well founded.

[2]The Respondent shall pay the Claimant compensation of £2,764.90.

REASONS

[3]The Claimant was employed as a production operative from 5 November 2007 until 2 August 2023, when he was dismissed for gross misconduct by the Respondent on the basis that he had engaged in bullying and offensive behaviour. The Claimant’s case is that he was unfairly dismissed because he was singled out by the Respondent in circumstances where there was a culture of banter which operated on the ‘shop floor’ of the factory where employees gave as good as they got. The Claimant avers that the person who raised the issue of his offensive behaviour was doing so maliciously, and that management acted upon the same due the fact that the Respondent had required the Claimant to record incorrect information in order to ensure that it passed certain audits. The Claimant also alleges that the Respondent failed to conduct a fair investigation and procedure.

The Hearing

[4]At the outset of the hearing, I raised the fact that without prejudice correspondence had been included in the hearing bundle. Given the content of the same I gave an opportunity to the parties, and in particular the Respondent to make any applications they may wish for me to recuse myself. The parties elected to proceed, and I have put the content of that correspondence out of my mind for the purpose of this judgment.

[5]We then dealt with the lack of certain documents relating to remedy in the bundle and I requested that the Claimant, in the absence of his remaining payslips from his new employment, that he should provide his bank statements for the period in question. There was also the question over his earnings from his newly acquired sandwich shop business, for which the Claimant was able to provide his business bank statements.

[6]It also became clear in the course of proceedings that certain documents were missing from the bundle which related to previous disciplinary matters involving the Claimant in 2018 and 2022 along with some occupational health documentation relating to a serious accident that the Claimant had suffered in 2015. As the case went part heard, I ordered the Respondent to disclose these documents. During the period of adjournment, the Claimant was also able to provide his remaining payslips and personal bank statements.

[7]The bundle in this case was agreed, and originally ran to 231 pages. Following the case going part heard an updated bundle was produced by the Respondent and the bundle increased from 231 pages to 414 pages. Any reference to page numbers I make here are to page numbers of that updated bundle.

[8]I heard evidence from three witnesses, Ms. Sandra Tomes, Ms. Bellfield and the Claimant. On day two, the Claimant who was part way through his evidence handed up a medical letter, which related to a road traffic accident he had been involved in on 21 February 2015, when he had been knocked off his pedal cycle causing him to sustain, injuries including: a fractured skull, fractured back, leg and a ruptured spleen. The Claimant explained that following these injuries his memory was ‘shot’ and that he was more irritable and less tolerant. Following this disclosure, I treated the Claimant as a vulnerable witness and I have taken into account how these injuries might have impacted on his ability to partake I the proceedings and his ability to recall details when giving his evidence.

[9]On day two the Claimant had completed his evidence and I then heard submissions from the parties. This took us to the end of the day, and given the outstanding documentation noted above I decided that we would list a third day to deal with any outstanding issues arising from the new evidence, including any need to re-call witnesses and judgment. I also ordered the parties to write to the Tribunal following the disclosure of the additional documents in order to request whether they required any witness to be recalled and also produce any final written submissions. The Respondent did produce written submissions and also requested that the Claimant was recalled to answer some further questions on the new documentation.

[10]On day three of the hearing, the Claimant was sworn in again and gave some further evidence following which I heard final submissions from both parties. I then reserved judgment.

The Issues

[11]There were no issues as regards employment status, date of dismissal or time limits. There was a list of issues produced by the Respondent, which was agreed. I have added to this list as I have deemed fit in order to facilitate proper assessment of the issues before me.

[12]The issues are: i. Has the respondent shown the reason or principal reason for dismissal was the claimant’s misconduct? ii. Was it a potentially fair reason under s.98(2)(b) of the Employment Rights Act (“ERA”) 1996? iii. 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? iv. The Tribunal will usually decide, in particular, whether:a. the respondent genuinely believed the claimant had committed misconduct;

b. there were reasonable grounds for that belief;

c. at the time the belief was formed the respondent had carried out a reasonable investigation;

d. the respondent followed a reasonably fair procedure;

e. dismissal was within the band of reasonable responses.

The Evidence

[13]I heard oral evidence from Ms. Tomes, the dismissing officer, Ms. Bellfield, the appeal officer and the Claimant.

[14]What follows is a brief summary of the oral evidence I heard, and it is not intended to be a verbatim note.

[15]Ms. Bellfield gave evidence first as it was suggested that she, as an external consultant might need to leave the Tribunal early. Ms. Bellfield gave evidence in accordance with her statement. It was put to Ms. Bellfield that she had not referred to any notes and had her laptop closed during the appeal hearing. Ms. Bellfield agreed that this was the case but rejected the suggestion that this was because she had already made up her mind to uphold the dismissal. Ms. Bellfield explained that she did not consider that Mr. Aaron Bargota’s motivations for making the complaint against the Claimant were relevant since the complaint had been formally raised by a manager Mr. Bostridge. Ms. Bellfield stated that she did not consider the motivations of Mr. Bargota for leaving his employment with the Respondent were relevant and, in any event, she had formed the view that his complaint over the Claimant’s conduct was due to Mr. Borgata being genuinely upset by it. Ms. Bellfield agreed that there was a banter culture in the workplace, but the Claimant took this further than others. Nonetheless, she did take the banter culture into consideration in her decision. Ms. Bellfield accepted that she did form an impression that ‘jokey awards’ did go on in the workplace. As to the fact that Mr. Bargota used to call the Claimant a ‘nonce’, Ms. Bellfield did not consider that this was capable of supporting the Claimant’s claims in relation to the banter culture. In answer to questions from the Tribunal, Ms. Bellfield explained that she had been told by human resources that there had been no instances of disciplinaries for banter type behaviour in the past five years. That there had been a culture of tolerance of banter under the previous CEO but that this had been tightened up since the new CEO, Mr. Capell had taken over. In final questions put by the Claimant, Ms. Bellfield denied that any witnesses had been led in the investigation. She also stated that she had formed a view that a lot of the banter on the shop floor had not come to the attention of the managers. Ms. Bellfield was unable to assist in respect of the dates as to when the allegations were meant to have taken place.

[16]Ms. Tomes, the disciplinary officer then gave evidence having confirmed her statement. Ms. Tomes stated that she had formed the view that the Claimant genuinely believed that he had not done anything wrong and that he did not know where the line was when it came to banter. Ms. Tomes explained that she had not interviewed Mr. Bargota and therefore did not lead him as a witness and that she was unable to re-interview him as he had left the company by the time she had become involved. Notwithstanding, the lack of reference to banter in her decision letter, Ms. Tomes stated that she did consider the issue of the banter culture in her decision to dismiss. She stated that it appeared to her that the only person who took banter too far was the Claimant and that most other employees understood where the line was drawn in respect of banter. Ms. Tomes stated that she formed the view that the Claimant would do the same again as he did not understand where the line should be drawn between acceptable banter and unacceptable banter. Ms. Tomes denied that management or human resources has been involved in the decision to dismiss or that she had been pressured to come to this decision. Ms. Tomes was also unable to assist in respect of the dates as to when the allegation were meant to have taken place.

[17]In answer to questions from the Tribunal, Ms. Tomes helpfully confirmed which allegation related to each of the ‘matters of concern’ on page 125, for which the Claimant had been dismissed.

[18]The first bullet point related to the allegation that the Claimant had suggested to Mr. Paul Watt that he had Mark’s ‘cum on his face’.

[19]The second bullet related to the allegation that he had told Mr. Piros to ‘fuck off back to Poland’ and told Mr. Bargota he looked like a ‘suicide bomber’ and asked him what it was like ‘fucking a goat’ with reference to Mr. Bargota’s wife.

[20]The third bullet point related to the allegation that he had asked Ms. Katrina Turnball to come and sit on his lap and a suggestion that he could do ‘it’ better than her husband.

[21]The forth bullet point related to the allegation that he had referred to people he was training or supervising as ‘the dopey twins’, ‘stupid’ and ‘idiots’.

[22]Ms. Tomes also confirmed that the document at page 103 to 106 was prepared by herself and formed the basis of her findings.

[23]The Claimant then gave his evidence. The Claimant relied on his email dated 28 July 2025 as his witness statement and confirmed that the content of the same was true. In respect of a disciplinary in 2018 the Claimant explained that he had received an improvement notice for having failed to tick a box on a form. The Claimant accepted that he had attended the bullying and harassment training on 28 May 2023. The Claimant explained in detail as to why he believed that Mr. Bargota had raised the complaint over his behavour at the point he left the company. He noted that he had neem required to attend to an emergency when Mr. Bargota had fainted and had discovered that Mr. Bargota had only been eating 1000 calories a day. An ambulance was called on that occasion. Then on 1 July 2023, Mr. Bargota had come to him complaining that he was not well and that this had led to a discussion during which the Claimant had raised his concerns with Mr. Bargota that he might be suffering with an eating disorder. The Claimant explained that Mr. Bargota was upset and angry over this conversation and liken this to telling an alcoholic that they had a drink problem. The Claimants stated that Mr. Bargota then went home, and he did not see him for two weeks as the Claimant himself then went on holiday. The allegations were made by Mr. Bargota during his exit interview which took place on 7 July 2023 and related to incidents that were alleged to have taken place many months before but had not been raised at the time. The Claimant therefore explained that it was for this reason that he believed that Mr. Bargota had only decided to raise this issue malicious due to being upset with him over the conversation about his eating disorder.

[24]As to the banter culture the Claimant said that this was rife throughout the organisation and that people gave as good as they got. He explained that management were aware of the same and were sometimes involved. The Claimant referred to an example where he had told Mr. Capell that management were only good for polishing their seats with their ’arses’ and that this was a running joke between management and those on the shop floor. The Claimant denied that Mr. Bargota had taken any real offence at the comments as he himself engaged in the banter and regularly referred to the Claimant as a ‘nonce’. Mr. Bargota also was on a group WhatsApp chat and often engaged in banter and sending memes on the same. The Claimant explained in relation to the earlier incident in 2022 involving Mr. Tomasz Gill (cell leader) he had told him to ‘fuck off’ on a number of occasions but that this was banter. He explained that during the investigation he had raised the fact that Mr. Gill used to go around the factory floor telling people that they were ‘lazy cunts’, following which he was completely cleared.

[25]On day two the Claimant gave some evidence about his accident which took place in 2015 explaining that since this accident he has struggled with his memory and irritability and completing paperwork. He noted that he had been absent form work for 4 months and then returned on restricted duties for 18 months. The Claimant accepted that he had stated that he could not remember making the suicide bomber comment in the disciplinary hearing but in the resumed hearing had later denied having made the comment and stated that this was not the sort of thing he would have said. The Claimant stated that MR. Bargota would often call the Claimant his ‘white Daddy’ and had told people in the past that they were ‘too white’ to attend his parties. The Claimant accepted he had referred to Jack and Mr. Bargota as the ‘dopey twins’ and this was connected to the fact that this is what Jack’s father had called them outside the workplace when they had been involved in fixing a car together. He accepted that he might get irritable and call Mr. Bargota stupid on occasions when he used to stand over the Claimant when he was attempting to complete paperwork which he found difficult. The Claimant noted that making parts for the aeronautical industry was an extremely precise process and everything had to be perfect, and each nut and bolt had to be traceable. He accepted as part of the banter between himself. Jack and Mr. Bargota he might say ‘don’t forget who is training who’. The Claimant denied that the comment about the goat was racist, but that he did say it, but this was in the context of Mr. Bargota calling him a nonce. In respect of the comment about Poland made to Mr. Piros, the Claimant explained that Mr. Piros would make fun of the Claimant’s eyesight, which was extremely poor despite wearing glasses and in this context, he would joke that he could still see where Poland was on the map. The Claimant did accept having made the comment.

[26]In respect of the timing of the comments the Claimant explained that the ‘cum’ reference in respect of Paul was three months before the issue was raised with him. The Poland comment would have been ‘months’ before and the suicide bomber he was unable to say as he denied the comment and they would regularly chat around the coffee machine. In respect of the ‘dopey twins’ remark this would have been around six months prior to the issue being raised as it was made when he had been interrupted whilst attempting to complete paperwork. The Claimant stated that he believed all of the incidents relied upon by the Respondent took place well before he attended the bullying and harassment training on 28 May 2023. He stated that he had toned down his banter since going on the training and accepted that in hindsight he could have used other words in order to engage in the banter culture.

[27]As to the WhatsApp messages in the bundle the Claimant confirmed that his messages were on the left and Mr. Bargota’s were on the right of the page.

[28]As noted above the Claimant then gave further evidence on day three, which was mainly confined to issues of remedy but also dealt with the additional documents relating to his brain injury. The Claimant accepted that there was no reference to his brain injury or memory problems in the occupational health reports provided by the Respondent. The Claimant stated that he had provided a copy of the neurology report at page 337 to the Respondent at the time. He stated that he did think that his personal injury solicitors had gone on to obtain the neuropsychologist report recommended but was unable to obtain a copy in time for the hearing today. He could recall that this report did not recommend any further treatment.

[29]In respect of remedy issues, the Claimant accepted the past earnings figures calculated by the Respondent and accepted that he would have to give credit for any earnings since his dismissal. The Claimant also explained that in March 2025, his girlfriend who was meant to be running the new sandwich shop business whilst he was working left him and handed back the keys. This meant he had had to give up his job and attempt to run the sandwich shop. Despite these efforts the sandwich business was making a loss and he had for the past few months been attempting to sell the business but thus far had been unable to do so.

[30]I have considered all of the evidence summarised above, but also the documentary evidence contained in the bundle when making the findings of fact set out below. Submissions

[31]Following the oral evidence I then heard submissions, first from the Claimant and then from Ms. Vittorio on behalf of the Respondent. The submissions can be summarised as follows.

[32]The Claimant submitted that the Respondent has not followed its own policies or procedures in dismissing him. No questions were ever put to Mr. Bargota that his complaint was malicious and motivated by the eating disorder issue, which was the Claimant’s case. It was clear that the Respondent had led all the witnesses in the questions that they had asked. The Respondent was looking for ways to get rid of him due to the audit issue. The culture of banter was throughout the company with everyone giving as good as they got. Once he had received the training, he did not engage in this sort of banter. Overall, the dismissal was unfair, failed to consider his fifteen years of service with only two previous incidents one of which related to only failing to tick a box for which he received a written warning and the other he was cleared of which related to telling a cell leader to fuck off against a background that same cell leader referred to him as a ‘lazy cunt’.

[33]The Respondent’s representative submitted that the Claimant had been inconsistent in his evidence in respect of whether he had trained both Aaron and Jack. There was no evidence that Mr. Cappell influenced the decision to dismiss. The comments involved were unlawful acts of discrimination and therefore breaches of the Equality Act 2010. Whilst the Respondent accepts that there was a culture of banter the only example of management being aware of such banter was in respect of the ‘dopey twins’ comment heard by Mr. Cappell. It was clear that the Claimant’s conduct went beyond banter. The Claimant had admitted the comments in the disciplinary and then backtracked. The Claimant is a deceitful man. The use of the word ‘nonce’ by Mr. Bargota was not relevant since it was not a protected characteristic and no grievance had been raised by the Claimant in respect of it. The comment ‘fuck off back to Poland’ was racist and uncalled for. Overall, the conduct went well beyond banter and wholly justified the dismissal. I was referred to a first instance decision in the case of Bratt v. JGQC Solicitors 260388/2022, which deals with conduct that amounts to sex harassment. It was also submitted that even if I find that the dismissal was unfair, I should go on to find that the Claimant would have been dismissed in any event pursuant to the approach taken in Polkey v. AE Dayton Services Ltd

[1998] ICR 142

, HL (hereafter ‘Polkey’) and therefore the reduction should be 100%. In the alternative I was asked to find that the Claimant was wholly responsible for his own dismissal such that I should make a deduction to any award on 100% basis for contributory conduct. I have also considered the Respondent’s written submissions sent to the Tribunal during the period of adjournment which suggested that the Claimant had only raised the issue of his accident in an attempt to mislead the Tribunal as to the impact of his head injury on his memory and therefore explain any inconsistencies in his evidence. The submissions also dealt with the documentation regarding the previously disciplinary matters observing that these documents supported the Respondent’s case that the Claimant’s so-called banter was not tolerated by management and also ran counter to the Claimant’s oral evidence that his swearing at Mr. Gill had only been in response to him calling him a ‘lazy cunt’. The submissions also asserted that the Claimant had behaved disruptively and vexatiously in the proceedings.

Applicable Law

[34]I have to apply section 98 of the Employment Rights Act 1996 in deciding the case. In short it is for the respondent to show on balance that the claimant was dismissed for a potentially fair reason; and the question of whether the dismissal was fair or unfair depends on whether in the circumstances the employer acted reasonably.

[35]In considering the question of reasonableness, I have had regard to the decisions in British Home Stores v. Burchell

[1980] ICR 303

; Iceland Frozen Foods Limited v. Jones

[1993] ICR 17

; Foley v. Post Office and Midland Bank plc v. Madden

[2000] IRLR 82

. I must apply the test outlined in the ‘Burchell’ case. The three elements of the test are: i. Did the employer have a genuine belief that the employee was guilty of misconduct? ii. Did the employer have reasonable grounds for that belief? iii. Did the employer carry out a reasonable investigation in all the circumstances?

[36]An employer is not obliged to believe one employee over another in forming a genuine belief on reasonable grounds that the misconduct occurred (Salford Royal NHS Trust v Roldan

[2010] EWCA Civ 522

[37]A tribunal cannot substitute its own decision as to what it may have decided in the same situation. The tribunal’s role is to decide if the respondent’s decision to dismiss the claimant fell within the band of reasonable responses open to an employer. I must guard against not taking a ‘substitution mindset’ (London Ambulance Service NHS Trust v. Small

[2009] EWCA Civ 220

). That approach applies to both the investigation and the decision to dismiss itself (Sainsbury’s Supermarket Ltd v. Hitt

[2002] EWCA Civ 1588

[38]As to the state of knowledge of the Respondent, I am satisfied that Orr v Milton Keynes Council

[2011] ICR 704

, CA applies to this case. I have considered whether this is a case which falls under the limited exception (relating to deceit at an earlier state in the disciplinary process) set out in Royal Mail Ltd v Jhuti

[2019] UKSC 55

but have concluded on the evidence it does not apply. In applying Orr v Milton Keynes Council, I can only consider the relevant state of mind of the disciplinary officer concluding that dismissal should take place. I cannot therefore impute ‘corporate knowledge’ to the respondent.

[39]Similarly, I can only take account of facts or beliefs that were known to the respondent at the time of the dismissal (Devis v. Atkins

1977 ICR 622

, HL). In particular, the tribunal is furnished with significant additional evidence, so my assessment of reasonableness of what the respondent did is only based on what facts were available at the time (CRO Ports London Ltd v. Wiltshire EAT 0344/14).

[40]I need to be satisfied as to the identity of who took the decision to dismiss; and I should look at the disciplinary process and any appeals process by the respondent as part of the overall process of dismissal. Applying West Midlands Co-Op Ltd v. Tipton

[1986] ICR 192

, separating the dismissal process from the appeal was artificial; and facts coming to light during the appeals process are relevant in considering whether the respondent’s decision to dismiss was reasonable. An appeals process plays a part in the overall determination of fairness, though unfairness in the appeal will not always or inevitably lead to a finding that the dismissal was unfair (Mirab v. Mentor Graphics Ltd EAT 0172/17).

[41]Dismissal does not have to be the last resort for it to fall within the band of reasonable responses (Quadrant Catering Ltd v. Smith EAT 0362/2010). However, there may be instances when mitigating factors were identified by the respondent (not the tribunal of its own volition) which would allow a tribunal in ‘a small number of cases’ to conclude that no reasonable employer would have dismissed. (East of England Ambulance Service NHS Trust v Sanders EAT 0319/15). It was also observed that as part of the investigation, an employer may be required to investigate mitigatory factors bearing upon sanction for proven or admitted misconduct (Tesco Stores Ltd v. S EATS 00040/19).

[42]I should take into account the respondent’s’ size and administrative resources and have regard to equity and the substantial merits of the case. The consideration of equity is part of the reasonableness assessment and not standalone. Minor procedural defects may not be material to an assessment of reasonableness (D’Silva v MMU EAT 0328/16); and it is important to consider ‘substance and procedure’ and looking at ‘the whole procedure, including the decision to dismiss, in the round’ (Langstaff P, in Sharkey v. Lloyds Bank Plc EATS 0005/15).

[43]I should also consider if the respondent has complied with internal policies and procedures and done so correctly (Sinclair v Wandsworth Council EAT 0145/07 and Welsh National Opera v Johnston

[2012] EWCA Civ 1046

). 15. In assessing whether the respondent followed a fair procedure, I should take account the ACAS Code of Practice on Discipline and Grievances.

[44]The claimant suggests he has been singled out and/or there has been inconsistency in disciplinary punishment. That may be relevant where there is true parity between cases of similar misconduct; and an employer has some flexibility (Post Office v Fennell

1981 IRLR 221

; and Paul v East Surrey District Health Authority, CA,

[1995] IRLR 305

[45]The claimant also suggests that the respondent failed to enforce its disciplinary policies amongst the workforce which as I understood it, created a banter culture that was tolerated. This may or may not be relevant for my consideration. (see for example, JJ Food Service Ltd v. Kefil

[2013] IRLR 850

). Polkey

[46]It is clear from the House of Lords’ decision in Polkey that their Lordships did not intend their ruling to be limited to any specific reason for dismissal. Whether an employer dismisses for redundancy, misconduct, incapability or for another permissible reason, it will not be able to avoid a finding of unfair dismissal by arguing that any failure of procedure would have made no difference to the outcome of the dismissal process. However, in such cases, tribunals are enabled, when assessing the compensatory award payable in respect of the unfair dismissal, to consider whether a reduction should be made on the ground that the lack of a fair procedure made no practical difference to the decision to dismiss.

[47]In Software 2000 Ltd v Andrews and ors

2007 ICR 825

, EAT, Mr Justice Elias, reviewed the authorities on the application of Polkey and summarised the principles to be extracted from them. These included: i. in assessing compensation for unfair dismissal, the employment tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal; ii. if the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee (for example, to the effect that he or she intended to retire in the near future); iii. there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the tribunal; iv. however, the tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence; v. a finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary (i.e. that employment might have been terminated earlier) is so scant that it can effectively be ignored.

[48]These principles have been consistently applied by the EAT in later cases, including Butler v GR Carr (Essex) Ltd EAT 0128/07; Wilson UK Ltd v Turton and anor EAT 0348/08; Allied Distillers Ltd v Handley and ors EATS 0020/08; Cumbria County Council and anor v Bates EAT 0398/11; and London Borough of Hillingdon v Gormanley and ors EAT 0169/14. Of particular note is Elias P’s observation that tribunals must have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation. Contributory Fault

[49]Sections 122(2) and 123(6) ERA impose a duty on employment tribunals to consider the issue of contributory fault in any case where it was possible that there was blameworthy conduct on the part of the employee.

[50]Section 122 (2) provides: ‘where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly’.

[51]Section 123(6) provides: ‘where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding’.

[52]The approach is to be adopted when addressing the question of any reduction for contributory fault in relation to the two sections of ERA on an unfair dismissal claim was considered by Langstaff J in Steen v ASP Packaging Ltd

[2014] ICR 56

, thus:a. “The two sections are subtly different. The latter calls for a finding of causation. Did the action which is mentioned in section 123(6) cause or contribute to the dismissal to any extent? That question does not have to be addressed in dealing with any reduction in respect of the basic award. The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent. Both sections involve a consideration of what it is just and equitable to do.

b. The application of those sections to any question of compensation arising from a finding of unfair dismissal requires a tribunal to address the following:

(1) it must identify the conduct which is said to give rise to possible contributory fault;

(2) having identified that it must ask whether that conduct is blameworthy.

c. It should be noted in answering this second question that in unfair dismissal cases the focus of a tribunal on questions of liability is on the employer’s behaviour, centrally its reasons for dismissal. It does not matter if the employer dismissed an employee for something which the employee did not actually do, so long as the employer genuinely thought that he had done so. But the inquiry in respect of contributory fault is a different one. The question is not what the employer did. The focus is on what the employee did. It is not on the employer’s assessment of how wrongful that act was; the answer depends on what the employee actually did or failed to do, which is a matter of fact for the employment tribunal to establish and which, once established, it is for the employment tribunal to evaluate. The tribunal is not constrained in the least when doing so by the employer’s view of the wrongfulness of the conduct. It is the tribunal’s view alone which matters.

d. The tribunal must ask for the purposes of section 123(6) if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did not do so to any extent, there can be no reduction on the footing of section 123(6), no matter how blameworthy in other respects the tribunal might think the conduct to have been. If it did cause or contribute to the dismissal to any extent, then the tribunal moves to the next question,

e. This, question (4), is to what extent the award should be reduced and to what extent it is just and equitable to reduce it.

[53]The just and equitable consideration in the context of contributory conduct applies only to the proportion (the percentage amount) by which the tribunal reduces the award. It does not apply to whether or not to make a reduction in the first place, or entitle the tribunal to take into account matters other than conduct that is causative or contributory to the dismissal (see Parker Foundry Ltd v Slack ]1992] ICR 302, CA),

[54]In Hollier v Plysu Ltd

[1983] IRLR 260

, EAT, the EAT suggested that the contribution should be assessed broadly and should generally, but not exclusively fall within the following categories: wholly to blame (100 per cent); largely to blame (75 per cent); employer and employee equally to blame (50 per cent); slightly to blame (25 per cent).

[55]When exercising this discretion, I remind myself to guard against the risk of double counting in circumstances when a claimant might already have suffered a deduction by reason of Polkey. In Granchester Construction (Eastern) Ltd v Attrill EAT 0327/12, Langstaff J in hearing an appeal against an employment tribunal’s remedies decision, referred to the Court of Appeal’s decision in Rao before noting that it may be ‘appropriate to moderate what would otherwise be the degree of contributory fault that would reduce an award because there have been matters of conduct taken into account in assessing the chances of a fair dismissal’. Were this not so, he continued, ‘it might be in effect double counting to impose upon the claimant a further reduction by way of contributory conduct’. It was therefore not wrong, as a matter of principle, for the tribunal, having already applied a 50 per cent Polkey reduction to the compensatory award to reflect the chance of a fair dismissal, to set a further reduction for contributory conduct at 10 per cent only in order to ‘avoid the injustice of an excessive and disproportionate reduction’.

Findings of Fact

[56]I have considered all the evidence contained in the bundle, the witness statements, oral evidence and submissions in making my findings of fact. Where there has been a dispute on the evidence, I give reasons for why I preferred one version of events over another. However, where there has been no challenge and/or dispute on the evidence I have found the facts according to the weight of the oral and documentary evidence. I have only referred to specific parts of the evidence which I consider to be most important to determination of the issues, but this does not detract from the fact that I have considered the entirety of both the documentary and oral evidence when coming to my conclusions. My findings of fact are based on the standard of proof which is the balance of probabilities, namely what is more likely than not. The burden of proving the reason for dismissal and the fairness of the same is on the Respondent.

[57]The Claimant had been employed by the Respondent as a production operative for some 15 years at the date of his dismissal. Whilst he did not hold any management or supervisory role his experience was such that he was regularly required to train new starters.

[58]The Claimant suffered from a serious road traffic accident on 21 February 2015 during which he sustained very serious injuries, including: i. A T12 unstable burst fracture requiring internal fixation; ii. Right tibial plateau fracture; iii. Right weber A fracture to his malleolar; iv. Contusion to his spleen; v. Skull fracture to his left frontal bone; vi. Multiple lacerations.

[59]Whilst the Claimant recovered well from these injuries and was able to return to work, he did suffer a further set back when one of the screws in his spine snapped and he required further surgery to his back in November 2015. Having had an initial 4 months from work, he returned part-time and on restricted duties for a further 18 months and was wholly absent from November 2015 to 9 January 2016, due to the further surgery he required.

[60]Dr. Mazibrada (consultant neurologist) concluded in his report dated 10 January 2017 that the Claimant had suffered from a moderate traumatic brain injury, which would increase his risk of epilepsy and due to ongoing issues with his memory and word finding difficulties he recommended that the Claimant undergo a further assessment with a neuropsychologist. These problems were recorded by the Claimant, his partner and daughter during the assessment and also noted in medical records detailed by Dr. Mazibrada on pages 341. I am satisfied that the Claimant does indeed suffer from ongoing problems with his memory. I accepted his evidence that he has struggled to complete paperwork and since his accident and he is more irritable. I also find contrary to the Respondent’s assertion that he did provide Dr. Mazibrada’s report to the Respondent. The Respondent led no evidence to the contrary and instead chose to rely upon cross examination of the Claimant in this regard. I also find that the Respondent would have been aware of the severity of the Claimant’s accident and the ongoing issues he had with his memory.

[61]However, it is clear from the disciplinary notes and the evidence of Ms. Tomes that the Claimant did not raise the issue of his accident and his memory problems/personality change during his disciplinary process and I am satisfied that Ms. Tomes was not aware of the same, and therefore could not have taken it into account.

[62]Contrary to the Respondent’s submissions, I wholly reject the suggestion that the Claimant was seeking to mislead the Tribunal in respect of his memory problems as a means of accounting for any inconsistencies that I might find in his evidence. I further reject the suggestion that I should place little weight on the neurologist report as it was prepared in support of a personal injury claim and the Claimant had motive to exaggerate his symptoms in order bolster such a claim. Such submissions appeared to have no evidential basis, were inappropriate and caused the Claimant unnecessary upset. Notwithstanding, I do not consider that the accident and the Claimant’s ongoing memory issue are relevant in the current case to the fairness of the dismissal since they were not relied upon by the Claimant during the process as I have found above. I have however, taken these issues into account when assessing the reliability of the Claimant’s oral evidence during the Tribunal proceedings and how he conducted himself.

[63]I also reject the Respondent’s contention that the Claimant has been misleading in respect of his evidence in respect of is answers as to whether he had trained one or two of the individuals or his characterisation of the disciplinaries in 2018 and 2022. In respect of the former, whilst it could be argued that the Claimant’s evidence in this regard has been somewhat inconsistent I do not see this is a deliberate attempt to mislead the tribunal. The importance of the point is very peripheral the issues that I have to decide and I am satisfied that the Claimant and indeed the Respondent’s witnesses were all doing their best to tell the truth about matters which took place, now well over two years ago.

[64]On 7 July 2023, Mr. Bostridge, cell manager, emailed human resources requesting that a formal investigation was commenced into the way the Claimant had treated Mr. Bargota during his time working for the Respondent. HR was reminded by Mr. Bostridge that they would have to act quickly to interview Mr. Bargota since he would be leaving the company soon.

[65]This led to an investigation being carried out by Ms. Cheryle McDonald who then set about interviewing employees, including Mr. Bargota that same day, (7 July 2023). Ms. McDonald also interviewed Mr. Jack McKenna on 7 July 2023 and then Mr. Juraj Piros, Mr. Chris Tomalin and Mr. Paul Doran on 11 July 2023.

[66]On 14 July 2023 the Claimant was suspended by Ms. Valerie Hylton. The email addressed to Ms. McDonald at page 79 states that Ms. Hylton made the decision to suspend the Claimant and that the investigation was currently with Louis Gill, who will ‘tell you where it is’. This is curious as neither Ms. Hylton or Mr. Gill were involved in the investigation and by the time of this email Ms. McDonald had already commenced her investigation. The Respondent chose not to call evidence from Ms. Hylton, Mr. Gill or Ms. McDonald.

[67]Ms. Katrina Turnball was interviewed on 15 July 2023.

[68]On 16 July 2023, Ms. McDonald interviewed the Claimant. The notes to this interview are a page 87. During the course of the interview the Claimant the Claimant made it clear that he had engaged in what he described as banter with both Mr. Bargota and Jack McKenna and did call them the ‘dopey twins’. He also admitted that he did on occasion call them stupid or idiot but in a banter way. When the suicide bomber comment was put to the Claimant he responded and said: ‘I can’t remember it, I might have done, I might not’. The Claimant also raised the fact that Mr. Bargota had called him a ‘nonce’ but that this was all part of their banter, and he took this as a joke. The Claimant went on to accept that he had called Mr. Bargota’s wife a moose and asked him what it was like to ‘fuck a goat’ but that this was on the day that he had called the Claimant a ‘nonce’. The Claimant said it was ‘tit for tat’.

[69]Importantly, the Claimant denied that these comments had any racial undertones.

[70]The Claimant denied ever having slapped Mr. Bargota on the head. The Claimant did accept that he might have told people to go back where they came form but again this was as part of banter. In respect of Mr. Piros the Claimant explained that he and Mr. Piros had a lot of banter whereby, Mr. Piros makes fun out of the Claimant’s poor eyesight and in return the Claimant makes fun about him being Slovakian.

[71]As to the comment made to Ms. Katrina about coming to sit on the Claimant’s knee, the Claimant accepted that he had made such a comment and that they had had this sort of banter between them for years. The Claimant accepted that he had made the comment about Paul Watt’s having ‘Mark’s cum around his face’ and this was him and Paul having a laugh.

[72]The Claimant then raised his concern that Mr. Bargota was only raising the complaint maliciously due to having been upset over the conversation he had had with Mr. Bargota about him having an eating disorder on 1st July 2023. The Claimant also was able to produce a text message thread that had been sent by Mr. Bargota to Stuart Evans. This message is dated 7 July (I infer 2023) and appears at page 68 of the bundle and says: “Im leaving Lisi next week so won’t see you now hope everything works out well for ya good luck mate” Stuart responds: ‘How come you’re leaving?’ Mr. Bargota responds: ‘Got a new job in Tamworth 5 mins from my house better shifts less hours’

[73]The Claimant explained in his evidence, which I accept, that Mr. Bargota had been driving over 2 hours a day to commute to his job with the Respondent.

[74]The Claimant also stated that Mr. Bargota was fully engaged in the banter himself and that they regularly exchanged WhatsApp messages and showed Ms. McDonald and sample of these. They appear at pages 61 -63 of the bundle and appear to show that Mr. Bargota did indeed engage in banter that was two way with the Claimant. One such message, from Mr. Bargota refers to the Claimant saying ‘you twat’ with two laughing face emojis. The Claimant made it clear that Mr. Bargota had not once complained to him that he did not like the banter and himself would bring colour into conversations referring to the Claimant as his ‘white daddy’ and the photo sent by Mr. Bargota on page 63 which depicts an Asian woman wearing Muslin dress holding a sign saying ‘let me back in I have tomatoes’ plainly in my judgment supports this contention. I find that this evidence strongly supported the Claimant’s contention that Mr. Bargota was engaged in two-way banter with the Claimant and had not, until having raised this in his exit interview, appeared to have ever had a problem with it.

[75]Ms. McDonald then decided to follow up the ‘white daddy’ comment by emailing Mr. Bargota who responded to confirm that he had used this term, albeit only on one occasion as he didn’t feel it had been well received. Mr. Bargota also confirmed that he could not remember if he had ever sent memes or jokes by text to the Claimant but there had been some exchanges between them, but he had now deleted them all. Of course, we know from the WhatsApp messages I refer to above that he did send such messages and had referred to the Claimant as a ‘twat’ during the process. This was evidence of Mr. Bargota either misleading Ms. McDonald or at best being vague and evasive as to his level of involvement in the banter between the Claimant and himself.

[76]Ms. McDonald then spoke to Mr. Kevin McManus on 24 July 2023, who as I understand matters, was the Claimant’s line manager and was certainly the cell leader for the section of the factory worked on by the Claimant. Mr. McManus confirmed that there was a lot of banter in the workplace and when asked specifically about the Claimant’s behavour he stated that he had heard the Claimant saying ‘remember whose training who’ but this was in a jokey way. Mr. McManus also confirmed that the Claimant and himself engage in banter calling each other names. Mr. McManus also recalls that Mr. Bargota did call the Claimant his ‘white work Dad’ and after this they (being the Claimant and Mr. Bargota did a ‘fist pump’. This again was evidence contrary to that which had been given by Mr. Bargota who had said this had not been well received.

[77]There was no attempt by Ms. McDonald to investigate when any of the alleged comments had been made by the Claimant.

[78]Ms. McDonald then produced a final report at page 94 of the bundle. This report finds that the Claimant had made inappropriate and offensive remarks to employees, racist comments, sexist remarks and bullying behaviour towards trainees and recommended that the matter proceed to a disciplinary hearing.

[79]Under the terms of the Respondent’s disciplinary policy at 9.2 on page 41, it states that ‘on receipt of the investigation pack, HR will review the evidence and discuss with the manager whether to arrange a disciplinary hearing and who should chair the meeting’. There is no evidence to suggest that this stage ever took place. Indeed, Mr. McManus as the Claimant’s manager ought to have been consulted about whether this should have proceeded to a full disciplinary hearing, and it would appear from Mr. McManus’s statement to Ms. McDonald he may well have considered that no such disciplinary was required in light of what he viewed as a harmless banter culture. Instead, Ms. Hylton appears to have simply forwarded the investigation report to the Claimant and set up a disciplinary hearing. I find that this was a significant flaw in the Respondent’s disciplinary procedure.

[80]The conduct of the disciplinary hearing was given to Ms. Tomes and took place on 1 August 2023. During this meeting the Claimant again accepted some of the comments had been made as outlined above but that this was all part of the banter culture that existed in the workplace between himself and his colleagues. Importantly, the Claimant also noted that many of alleged instances were prior to him having completed the bullying and harassment training and that since he had toned down his banter. The Claimant also raised that on one occasion, Mr. Bargota had suggested that one of his colleagues was ‘too white’ to attend one of his parties. Ms. Tomes decided to adjourn the hearing in order to speak to Mr. Stuart Evans. Mr Evans confirmed that he had heard Mr. Bargota call the Claimant a nonce on occasion and that he did not consider that Mr. Bargota had ever been offended by the banter and engaged in the same equally. Mr. Evans also stated that he believed that Mr. Bargota had simply left as he had found a better job and that they had all been good friends and on good terms when he left them. The Claimant also having been asked about previous disciplinaries in 2018 and 2022 raised the fact that he had a written warning for failing to tick a box and then had been cleared of the one with Mr. Gill in 2022. The Claimant raised why it was ok for a manger to go around calling him all names under the sun including a ‘cunt’.

[81]It does not appear that Ms. Tomes looked into the incidents of 2018 and 2022 but had she done so, she would have discovered that in respect of the 2018 incident the Claimant had been called up on not ticking a box and when this had happened, he had used the word ‘bullshit’ in response to the manager [page358]. In respect of the 2022 incident this would have revealed that the Claimant had indeed told Mr. Gill to ‘fuck off’ but during the disciplinary the Claimant had referred to the fact that Mr. Gill had called him a ‘C U Next Tuesday’ and at this point in the meeting Mr. Wilson concluded that he would draw a line under the incident. This latter incident did not lead to a written warning. I wholly reject the Respondent’s assertion that the Claimant gave misleading evidence in respect of these incidents both during the disciplinary and the hearing. It is wholly understandable, from my reading of the meeting notes on page 374 that the Claimant would have been left with the opinion that the management had dropped the disciplinary due to the Claimant’s suggestion that he had been called a ‘cunt’ by the manager concerned. I further find that given that the Claimant’s defence was all about the culture of banter that Ms. Tomes, having raised the issue of the past disciplinaries ought to have at least read the notes for the same in order to identify whether the Claimant’s perception of the same was justified. This could in turn have impacted on the Claimant’s level of culpability due to the understandable perception the Claimant had coming from the incident in 2022 that such behaviour was tolerated as banter in some form. I find the failure of Ms. Tomes to look into this matter, having raised the incidents herself was a further flaw in the procedure adopted by the Respondent.

[82]Mr. Paul Watts was also spoken to by Ms. Tomes, and he confirmed that the Claimant had made the comment about Mark’s cum on his face and that whilst it did wear a bit thin he was not offended by it. Mr. Watt’s also confirmed that he had heard the Claimant telling Mr. Piros to ‘fuck off back to Poland’ which he did consider to be unacceptable despite it not being malicious.

[83]Mr. McManus was also spoken to again and he confirmed that he had never seen the Claimant engage in anything other than acceptable banter and that he had said on occasion it would be quicker to train an idiot. He again referred to having seen the Claimant engage in two-way banter with Mr. Bargota and fist pumping. Mr. McManus stated he had never heard any racist comment from the Claimant. He stated that he was very surprised that Mr. Bargota had suggested that this was his reason for leaving since he was aware that he had found a job closer to home.

[84]Ms. Tomes did not attempt to investigate in these further interviews the timings of the alleged comments and whether they had all taken place prior to the Claimant going on the bullying and harassment training in May 2023. I find both the failure of Ms. McDonald and Ms. Tomes to make any attempt to pin down whether the comments for which the Claimant was subjected to a disciplinary process for were made before or after the Claimant had attended the bullying and harassment training amounted to further significant failings in both the investigation and disciplinary process.

[85]Following these further interviews, Ms. Tomes states that she prepared the document which appears on page 105 and 106 of the bundle. This sets out the findings she was going to make at the resumed hearing and then at the end of the document it states, ‘based on the evidence obtained during the investigation, my conclusion is that the incidents I have discussed today constitute gross misconduct as listed in our disciplinary’. It goes on to record: ‘I am therefore terminating your contract of employment with immediate effect’. I am fortified in this finding by the fact that one can see the same wording contained in the resumed disciplinary hearing minutes on page 115. This means that at the point at which Ms. Tomes re-commenced the disciplinary on 3 August 2023 she had already decided that the Claimant should be dismissed for gross misconduct. I find that this predetermination of the decision prior to the disciplinary hearing being complete, was a further significant flaw in the procedure adopted by the Respondent.

[86]The Claimant was dismissed for gross misconduct at the hearing and provided with a letter of dismissal dated 3 August 2023 which is at page 125. The letter states that the ‘matters of concern’ were: i. ‘Made inappropriate and offensive remarks to and about employees; ii. ‘Has made racist comments and remarks towards employees’. iii. ‘Made sexist remarks towards female employee’. iv. ‘Shown bullying behaviour towards trainees’.

[87]The letter refers to the Claimant’s concern that Mr. Bargota had raised the complaint for malicious reasons but fails to make any reference to the culture of workplace banter relied upon by the Claimant. The letter also does not refer to whether Ms. Tomes found that the examples of misconduct under the headings above took place either before or after the Claimant had received his bullying and harassment training.

[88]It is however clear from the disciplinary notes and Ms. Tomes’ evidence that the examples of this behaviour was as set out above in paragraphs 17 to 20 above. I am satisfied that Ms. Tomes found these events proven and decided to dismiss the Claimant for gross misconduct as a result of the same. I am also satisfied that Ms. Tomes did to a limited extent take into account the issue of workplace banter when coming to her decision but found this as an explanation for the conduct ‘unsatisfactory’. For the avoidance of doubt, for the purposes of considering any contributory conduct issue as set out below I find on balance that the Claimant did indeed make those comments set out at paragraphs 17- 20.

[89]On 11 August 2023 the Claimant exercised his right to appeal on the grounds that the investigation was not conducted correctly or fairly.

[90]An appeal hearing then took place on 29 August 2023 which was conducted by Ms. Bellfield. At the outset of the hearing Ms. Bellfield stated that the appeal was not going to be a rehearing but rather was intended to decide whether the outcome was fair, and the sanction given correct. During the appeal hearing the Claimant raised a number of concerns about how the investigation and disciplinary process had been handled. The Claimant again reiterated that the acts complained of had all taken place before he had undertaken the bullying and harassment training. The Claimant also set out at some length the level of workplace banter that was going on. This included the involvement of management and giving out of a ‘cock sucker award’ which was a statue that had been presented by Mr. Carl Brown to Paul Watts. The Claimant also raised concerns about the fairness of the process in that he was only given some of the statements that had been taken a few minutes before he was then dismissed. Concerns were expressed over both the lack of time he had been given to prepare and the delays in the process which were suggested to be contrary to the time periods set out in the disciplinary policy.

[91]Ms. Bellfield decided to adjourn the appeal hearing in order to interview some further witnesses. Ms. Bellfield then took statements from Mr. Bostridge, Mr. Capell, Mr. Brown, Mr. Tomalin, Mr. Watts, Mr. Lee, Mr. Piros, Mr. Ratley and Mr. Colquhorn. Notably, Mr. Brown denied the suggestion that he handed out ‘cock sucker’ awards but Mr. Watts’ referred to the fact that he had been given an award but described this as a ‘kiss arse’ award. Mr. Capell confirmed that he had heard the Claimant refer to the ‘dopey twins’. Mr. Piros confirmed that he and the Claimant went through a phase where they both told each other to ‘fuck off’ and Mr. Lee confirmed that Mr. Bargota had told him that he was ‘too white’ to go to one of his parties. In Mr. Tomalin’s statement he referred to banter as ‘the oil which keeps the place going’ but that it was kept to a certain level, for example of him referring to someone as ‘ginger’ and another referring to him as ‘tubby or meathead’.

[92]A reconvened appeal hearing was then held on 3 November 2023. Ms. Bellfield explained at the outset that the hearing would not be to ‘go over the established evidence’ but to consider the additional statements in order to decide whether the appeal should be upheld. Unfortunately, but the time of the appeal hearing the Claimant had already submitted his claim to ACAS on 24 October 2023 and thought he was just attending to receive a decision and therefore had not brought his notes with him. Ms. Bellfield, also, as she accepted in her evidence did not have any notes accessible or have her laptop open. The appeal was therefore not an effective one.

[93]Ms. Bellfield dismissed the appeal in a letter dated 9 November 2023 which is at page 186. Ms. Bellfield held that there was no evidence to support the Claimant’s suggestion that the comments he had made were part of two-way banter where people gave as good as they got.

[94]Ms. Bellfield also found that Mr. Bargota sending the photo of the woman asking to be let back in as she had tomatoes as something that did not have the potential to create an intimidating or hostile environment as it referred to someone’s immigration status as opposed to their race.

[95]Similarly, she found that the term ‘white Daddy’ was not offensive and was in fact a compliment and respectful on the part of Mr. Bargota.

[96]Ms. Bellfield observed that the fact that Mr. Lee had found the comment about being too white to come to Mr. Bargota’s party funny meant that this was also not intimidating or hostile.

[97]Ms. Bellfield found the fact that Mr. Bargota had referred to the Claimant as a ‘nonce’ also did not create an intimidating, hostile degrading, humiliating or offensive environment as it was being used in the context of banter on the Claimant’s own case.

[98]Finally, she referred to the fact that the Claimant ought to have reported the banter to management rather than responding in kind and that Mr. Watts had denied that he was led by the investigating officer’s questions. The decision to dismiss was upheld. Ms. Bellfield failed to refer to the timing of the events under investigation and whether they had taken place before or after the Claimant had attended the bullying and harassment training.

[99]As noted above at the outset one of the issues that the Claimant raised in his witness statement was that he believed that the Respondent had an agenda to dismiss him due to the fact that he had been asked to falsify certain records in order to ensure that audits were passed. For the following reasons it is not necessary for me to resolve whether this was in fact the case. At no point during the investigation or disciplinary process did the Claimant raise this issue with the Respondent. There was no evidence that either Ms. Tomes or Ms. Bellfield were aware of it at the point that they made their decisions to dismiss and reject the Claimant’s appeal. Also from a Jhuti perspective there is no evidence to support the contention that one of the managers involved in the audit issue was in turn directing or influencing the disciplinary process. Therefore, even taking the Claimant’s evidence in this regard a face value I find that the audit issue could not have had any impact on the Respondent’s decision to dismiss the Claimant.

[100]Turning to my findings in respect of the issues I set out above at paragraph 11. i. Has the respondent shown the reason or principal reason for dismissal was the claimant’s misconduct?

[101]I am satisfied that the Respondent has shown that their principle reason for dismissing the Claimant was due to the Claimant’s misconduct as set out in the dismissal letter on page 125. i. Was it a potentially fair reason under s.98(2)(b) of the Employment Rights Act (“ERA”) 1996?

[102]I find that misconduct is a potentially fair reason for dismissal. i. 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?

[103]I do not find that the Respondent acted reasonably in all the circumstances when dismissing the Claimant. In order to set out my reasons for this conclusion it is necessary to consider the Birchell test and the issues set out at paragraph 11 (iv). Did the respondent genuinely believed the claimant had committed misconduct?

[104]I find that the Respondent did hold a genuine believe that the Claimant had committed the conduct concerned. Were there reasonable grounds for that belief

[105]I find that there were reasonable grounds for this belief. The Claimant had admitted all of the conduct relied upon by the Respondent (save for the suicide bomber comment) (as set out above at paragraphs 17-20) and in respect of the reference to the suicide bomber comment, the Claimant had at first stated that he could not recall whether he had said this. Later, the Claimant stated that it was not the sort of comment that he would have made. However, the Respondent had evidence from Mr. Bargota that the comment had been made and also another witness, Mr. Jack McKenna who gave a statement that either the Claimant himself or Mr. Stuart Evans had told him that such a comment had been made at the material time. I find that this was adequate evidence upon which to base their belief, notwithstanding Mr. Evans denied having heard the Claimant saying this in his statement to Ms. Tomes. At the time the belief was formed the respondent had carried out a reasonable investigation

[106]I find that the Claimant did not carry out a reasonable investigation due to the following matters.

[107]There was no attempt by Ms. McDonald to establish when the alleged comments were made. This was plainly important due to the timing of the Claimant’s bulling and harassment training on 28 May 2023. I find that a reasonable employer would in the first instance have attempted to establish a timeline for the conduct in question. This was especially so once the Claimant had raised the fact that he had toned down his banter since attending the training and also since they had good reason to question why Mr. Bargota had waited until his exit interview to raise these matters, namely the background of his text message stating why he had left due to finding a better job which was more local. This also struck at the heart of the Claimant’s defence which was that there was a culture of banter, meaning that it was unfair that he had been singled out. This made the timing of the conduct more important, if it had taken place before the Claimant’s training since this would go to mitigation and concerns about risk of repetition, the latter being a particular concern of Ms. Tomes.

[108]Similarly, there was no attempt by Ms. McDonald or Ms. Tomes or Ms. Bellfield to investigate the Claimant’s assertion that Mr. Bargota had raised the complaint maliciously. The Respondent instead chose to discount this as being relevant in any way due to the fact that the complaints had been extracted by Mr. Bostridge during Mr. Bargota’s interview. This might have been a reasonable position to take had they not been in possession of a text message that directly contradicted Mr. Bargota’s reason for leaving. This is more significant given that it was known that Mr. Bargota had been having to commute a long distance for work. Added to this were Mr. Bargota’s evasive responses to questions about whether he had engaged in banter over WhatsApp messages. The Respondent at this point had seen messages in which Mr. Bargota had called the Claimant a ‘twat’ and voluntarily sending the photograph of the lady with the tomatoes. This was not, in my judgment the behavour of someone who was simply trying to fit in. The Respondent failed to ask any questions of Mr. Bargota about the fainting incident and challenge his explanation as to why he left. This was again a main plank of the Claimant’s defence and given he was not going to be permitted to talk to any of the witnesses, it was even more important that his points were raised. It is also notable that the Respondent clearly took into account the fact that the Claimant was not offended by the comments made by Mr. Bargota and in particular being called a ‘nonce’. Indeed, this was one of the reasons given by Ms. Bellfield as to why she disregarded the concept of a two-way banter defence was because the Claimant was not offended whereas Mr. Bargota was. I find that a reasonable employer would not have one the one hand have disregarded banter aimed at the Claimant simply because he was not offended and then proceeded to dismiss the Claimant for banter with Ms. Turnball on the basis that even though she was not offended and was engaging in the same but that it might be overheard by others. In short this was duplicitous and one sided.

[109]There was also no investigation into the 2018 and 2022 previous disciplinaries. This became especially important once the Claimant had raised the issue of inconsistency of treatment between what had happened in 2022 and what was happening in the current disciplinary. I find that a reasonable employer, having elected to raise this issue themselves during the disciplinary and received the Claimant’s response, ought to have at least read the notes on the Claimant’s file. This would have revealed that in respect of the 2022 incident that, it was just after the Claimant had raised that Mr. Gill called him a ‘C U Next Tuesday’, that Mr. Wilson decided to draw a line under the incident and not put in a grievance [page 374]. This was something which had occurred only 9 months earlier and was important mitigation given it supported the argument that the Claimant understood that such banter was tolerated by management.

[110]Drawing together the above flaws in the investigation, I have no hesitation in finding that the same was not reasonable. The investigation failed to engage with the Claimant’s case and was rendered one sided and consequently unfair. the respondent followed a reasonably fair procedure;

[111]I find that the Claimant did not carry out a reasonably fair procedure due to the following matters.

[112]The Respondent failed to follow its’ own procedure at paragraph 9.2 of the disciplinary policy in that it failed to refer the investigation report to the Claimant’s manager. At the time the Claimant’s manager was Mr. McManus who was strongly of the view that whilst there was banter in the workplace it did not cross the line and was two way. Having management input on the decision as to whether to pursue the matter to a full disciplinary was an important part of the exercise of a discretion, which was denied to the Claimant in this case. It is interesting to observe this process in play at page 374, which resulted in a manger, Mr. Wilson deciding to draw a line under the matter. The failure to implement this part of its own procedure was unfair and I find that a reasonable employer can be expected to comply with their own policies and procedures.

[113]I also find that it was unreasonable for Ms. Tomes to have already determined her decision prior to the resumed disciplinary hearing. The purpose of the adjournment had been to gather further evidence in light of the Claimant’s assertions and arguments. The fact that this was done, was a positive indicator that the Respondent was attempting to act fairly, but it was then rendered pointless if the Claimant would then be denied any fair opportunity to address the same at the resumed hearing. It is perhaps telling that the Claimant when encountering a similar approach later with Ms. Bellfield, attended the adjourned hearing assuming that he was simply there to receive the decision and did not engage. I find a reasonable employer would not have attended the resumed hearing armed with a document setting out all the findings and a conclusion that the Claimant should be dismissed, but rather ought to have kept an open mind until the Claimant had been given an opportunity to comment on the newly acquired evidence.

[114]I have considered whether the appeal, which although initially restricted to a review but was then opened up to gather further evidence by Ms. Bellfield, was capable of curing the earlier defects in the investigation and procedure. I find that Ms. Bellfield has also made many of the same errors. She did not attempt to identify the timing of the conduct and how this sat alongside the date of the Claimant’s training. She did not look into the nature of the previous disciplinaries in 2018 and 2022 despite the point raised by the Claimant in the disciplinary hearing. She did not query why Mr. Bargota had not been questioned as to his real motivations despite the content of the WhatsApp messages and the evasive answers given by Mr. Bargota in his second interview. In addition, in the appeal letter Ms. Bellfield embarked on a rather unusual analysis of the Claimant defence of two-way banter and in doing so completely missed the point the Claimant was trying to make.

[115]The Claimant’s case on banter was essentially twofold. First, this was the culture and was tolerated and therefore how could he be expected to behave any differently. Second, that there was inconsistent treatment since others engaged in this, giving as good as they got but no action was taken against them. Seemingly ignoring these points, Ms. Bellfield instead dismissed the whole concept of the banter defence by attempting to draw a distinction between what was the more egregious forms of banter. This was analysed by reference to whether the comment used created a hostile/humiliating environment and whether they caused offence to the person on the receiving end. I find the observations that making references to a person’s immigration status has nothing to do with race untenable, the suggestion that a ‘White Work Daddy’ is a complement, that someone is ‘too white’ to come to someone’s party and using the term ‘nonce’ as not being capable of creating a hostile/intimidating environment also untenable positions to have been adopted by the Respondent.

[116]Accordingly, I find the attempts to explain away these other forms of socalled banter going on in the workplace to have been unreasonable and outside the range of reasonable responses. It is plain, regardless of whether anyone was actually offended by any of the comments used by the Claimant and his colleagues, that they were capable of amounting to unlawful forms of discriminatory conduct. Accordingly, this evidence was supportive of the Claimant’s case that there was a culture of banter which was tolerated and two way. This reality was dismissed by Ms. Bellfield and Ms. Tomes.

[117]As a result of these matters, I find that the procedure adopted was not reasonably fair in all the circumstances. Dismissal was within the band of reasonable responses.

[118]Due to the aforementioned procedural failings, I find that the resultant dismissal was not within the band of reasonable responses.

[119]Stepping back and considering the size and administrative resources of the Respondent I am satisfied that the failings set out above, were outside the range of reasonable responses and that this rendered the actions of the Respondent unreasonable in treating the Claimant’s conduct as a sufficient reason for dismissal contrary to section 98 (4) of the Employment Rights Act 1996. Accordingly, I find the Claimant’s claim for unfair dismissal well founded. Polkey

[120]Notwithstanding that I have found that the Claimant has been unfairly dismissed, I nonetheless find that the Claimant would have been dismissed in any event had a fair investigation and procedure been followed. I find that this dismissal would have been inevitable on the basis of the conduct concerned and accordingly the Polkey deduction is 100% in this case.

[121]Whilst it is clear from the above that there were a number of important matters that the Claimant was able to raise in his defence. Namely: i. that the comments has been made before he had had the training, ii. that he had since toned down his banter, iii. that there was a widespread culture of banter where people gave as good as they got, iv. that Mr. Bargota was not in fact offended by any of this conduct and engaged in the same banter, v. that Mr. Bargota only raised the complaints maliciously, that he had previously been found to have engaged in pretty strong banter in 2022 (telling a manager to ‘fuck off’) which had led to no action being taken which gave him a false sense of security, vi. that he was being unfairly singled out (inconsistent treatment).

[122]This when added to the Claimant’s 15-year service and comparatively clean disciplinary record might mean that he ought not to have been dismissed and some lesser sanction imposed.

[123]However, it is clear and especially since the introduction of the Equality Act 2010 that the expected standard of behaviour in the workplace has changed. The employer’s defence at section 109 (4) makes it clear that an employer may escape liability for acts of discrimination so long as it took all reasonable steps to prevent the same from taking place.

[124]Simply because the conduct of banter was widespread did not prevent the Respondent from taking decisive action when instances arose in the workplace so long as they properly considered this as a mitigating factor when exercising their discretion to dismiss. Evidence was given as to the efforts that were being made to stamp out the culture of banter, which including the training the Claimant received and that there had been a change of culture since the new CEO had taken over. This necessarily means that when action to dismiss employees engaged in unacceptable banter is taken, it will at first seem to those individuals like they are being unfairly singled out. Accordingly, an employer seeking to impose such a cultural shift needs to conduct its investigations fairly and carefully in order to ensure that the resultant dismissal is not unfair.

[125]In this case the conduct of the Claimant in using the term ‘suicide bomber’ to describe a work colleague, telling another to ‘fuck off back to Poland’, and telling another that they have ‘cum’ on their face, asking Mr. Bargota what it was like to ‘fuck a goat’ referring to his wife and the comments made to Ms. Turnball were so egregious, that in my judgment, once these were established, dismissal was the only appropriate outcome regardless of those issues of mitigation I set out above. Put shortly these were acts of unlawful harassment under the Equality Act 2010 to which no employer can or should ignore regardless of any culture of banter which might exist. I do not consider that had the Respondent adopted a fair procedure that this would have taken any longer to complete and accordingly, I find that the Claimant’s dismissal would have taken place no later than it did.

[126]Due to my findings on Polkey it is not necessary for me to deal with issues of remedy in respect of the compensatory award since this is now reduced by 100% to zero. Contributory Conduct

[127]Having reduced the Claimant compensatory award to zero I confine my findings on contributory conduct to section 122 (2) of the ERA 1996 in order to determine whether it is just and equitable to make any reductions to the basic award. I remind myself of the risk of double counting due to deductions made under Polkey and how this might feed into whether further deductions, albeit to the basic award are just and equitable. In determining this question, I must first consider whether the conduct took place, and second in deciding whether to make a deduction, consider whether the conduct was blameworthy. I must then step back and consider in light of the other deductions under Poley, whether it is just and equitable to go ahead and make the further deduction.

[128]I have already found above that the Claimant did in fact make those comments set out at paragraphs 17-20. In respect of whether this was ‘blameworthy’ I consider the extent of the workplace culture as described by the Claimant and the fact that Mr. Bargota did indeed seem to give as good as he got, along with all the other matters set out at paragraph 119. I also take into account that it is likely that these comments were made before the Claimant’s training took place and that he had only received a telling off from management as opposed to any formal disciplinary back in 2022 after having told a manager to ‘fuck off’. However, notwithstanding these I do find the Claimant’s comments were blameworthy. The Claimant had been told by Mr Wilson only 9 months before that not everyone likes this type of banter and that ‘for me the language is unacceptable’ and this being only in respect of swearing as opposed to the more serious conduct he then engaged in. Accordingly, the Claimant must have known that in making these comments he was running a risk but nonetheless he choose to make them. This was blameworthy and must be reflected in a deduction to the basic award. Stepping back, I consider that the just and equitable deduction in this case is that of 80%.

Remedy

[129]The Claimant is entitled to his declaration that his dismissal was unfair and this is set out above.

[130]The Claimant’s basic award would have been £13,824.50 based on the Claimant’s 15 years of service and age and the statutory cap of £643 per week that applied at the time of the dismissal.

[131]I then deduct 80% for contributory conduct, which leaves the sum of £2,764.90.

Conclusions

[132]Overall, I find the Claimant was unfairly dismissed but that he would have been dismissed in any event by the same date. I further find that this conduct was blameworthy and that it is just and equitable to reduce the basic award by 80% in all the circumstances. Approved by: