Ebeneezer Paul TagoeClaimantFernando Private LtdRespondent
Before
Employment Judge HogarthIn person for respondentDate 14 October 2025
JUDGMENT
[1]The claimant was unfairly dismissed by the respondent. The claim for unfair dismissal is well-founded and succeeds.[2]The claim for direct race discrimination is well-founded and succeeds.[3]The respondent failed to pay the claimant £1413.96 in respect of holiday entitlement the claimant had accrued but not taken before his dismissal on 24 April 2023. However, the respondent is entitled to set off the amount of £1413.96 subsequently paid to the claimant on 25 January 2024.[4]The claim for unauthorised deductions from wages was made out of time. It was not reasonably practicable for the claimant to bring the claim in time and the claim was brought within a reasonable time. Accordingly, the Tribunal has jurisdiction over the claim.[5]The respondent made an unauthorised deduction from the claimant’s wages by failing to pay him for a period of 11 days in June 2022, for which he should have been paid £1137.67 gross. However, the respondent is entitled to set off the net sum of £657.88 paid to the claimant on 18 April 2024.[6]A hearing will be listed to deal with compensation and other remedy issues arising from the decisions of the Tribunal on the claims. Separate Case Management Orders dealing with the remedy hearing will be issued separately.
REASONS
[1]The claimant is a black man who describes himself as African. He is of Ghanaian heritage. He worked as manager of a “Greggs” food and drink outlet at a garage operated by the respondent company before being summarily dismissed for gross misconduct on 24 April 2023. This followed a disciplinary hearing on 18 April 2023 conducted by Mr Anton Fernando, who managed the business and is the owner of the respondent company. Mr Fernando decided that various allegations of misconduct were well-founded, that they were serious enough to constitute gross misconduct and that the claimant should be summarily dismissed.[2]The claimant notified ACAS on 25 April 2023 for early conciliation. An early conciliation certificate was issued by ACAS on 5 June 2023. Accordingly, any claim in respect of acts or omissions before 25 January 2023 is potentially out of time.[3]By a claim form presented on 3 July 2023 the claimant brought claims for--a. unfair dismissal;b. direct race discrimination in respect of his dismissal;c. holiday pay in relation to accrued but untaken holiday outstanding at the date of dismissald. unauthorised deductions from wages, in relation to unpaid wages relating to work done in June 2022. The Issues relating to the claims were set out in Employment Judge Roper’s Case Management Orders and Case Summary of 3 April 2024 and are reproduced below.[4]The unfair dismissal and direct race discrimination claims are contested by the respondent. The respondent asserts that the claimant was fairly dismissed for gross misconduct following a reasonable investigation and a fair disciplinary process and that there was no direct race discrimination involved in his dismissal.[5]As for the holiday pay claim, the respondent has accepted that the claimant was owed holiday pay. A aum of £1413.96 net was paid into his bank account on 25 January 2024. We understood the claimant to accept that he had been paid the sum due to him, albeit about 9 months late.[6]The wages claim relates to a period of 11 days’ work at the end of June 2022 for which the claimant was not paid. The respondent made a payment of £657.88 into the claimant’s bank account on 18 April 2023. A payslip produced at the time shows that the gross sum involved was £ 822.48. The claimant disputes the accuracy of that figure and asserts that he worked more hours than the 83.5 recorded on the payslip relating to the payment that the respondent eventually made.[7]At a telephone case management preliminary hearing on 3 April 2024 EJ Roper listed a final hearing for 2 days on 11 and 12 September 2024. His Case Management Orders of that date contained the usual pre-final hearing directions in relation to a schedule of loss, disclosure of documents, witness statements and the preparation of an agreed bundle (for which the respondent was given responsibility).[8]The CMO was sent to the parties. The claimant replied by email to say he would be at the hearing, that he had been affected by the allegations made against him and that he needed help “from the Court”. He was sent a “sources of advice” leaflet by tribunal staff, who also copied the email to Mr Fernando,[9]There is little in the case file in the way of further correspondence with the Tribunal until 5 September 2024. On that day Mr Fernando emailed the respondent’s bundle of documents, with a covering letter apologising for the delay in responding to the tribunal since April (and referring in particular to the paragraph dealing with witness statements) for various personal and business reasons. It appears from his letter that he failed to take any action following the issue of the CMO until 5 September, 6 days before the final hearing was due to begin. The bundle sent was not an agreed bundle. It contains some 17 “annexes” (each consisting of one or more documents) including documents relating to the disciplinary and appeal processes and the various “statements” obtained by Mr Fernando prior to or during that process. There was no witness statement from Mr Fernando.[10]On 6 September, Mr Fernando emailed the Tribunal asking formally for a postponement to enable him to take legal advice. On 8 September he sent the Tribunal (but not the claimant) 6 CCVT video clips although we have been unable to open these. They were not referred to during the hearing. We understood these to relate to the allegations about what Mr Fernando considered to be theft of food or drink products from the Greggs outlet at the respondent’s garage business.[11]Employment Judge Cadney responded to the postponement request on 10 September. He declined to change the listing for 11 September and ordered the parties to provide their witness statements, a chronology and an agreed bundle by 2.00 pm on 10 September, noting that they should have been provided at least 6 days before. His directions concluded with a warning that, in the absence of the documents mentioned, the hearing would be converted to a preliminary hearing to consider striking out the claims and/or response.[12]A few pieces of written evidence in the case file were sent to the Tribunal by one or other party on 10 September 2024. Mr Fernando sent to the Tribunal and the claimant a list of important dates in the case and a copy of his existing bundle of documents. The claimant sent the Tribunal (but not the respondent) a schedule of loss dated 8 August 2024, two Natwest bank statements from his current account for June and July 2022 and a photo of the claimant and his family in the food outlet where he worked when it was a Subway outlet. He also sent the Tribunal (but not the respondent) three one-page documents described as “witness testimony”. These were a handwritten statement from Mrs Bridger-Tagoe referring to some events she witnessed on 16 March 2023 and two brief statements from “character” witnesses.[13]There is no witness statement from the claimant himself. However, it was clear to us that he had simply not understood what was expected of him in regard to supplying a proper witness statement containing his own evidence as to relevant events. The claimant also sent the tribunal some further photos shortly before the start of the final hearing.[14]The need to deal with various procedural issues on the morning of the first hearing day (“Day 1”) meant we lost half a day out of the planned two-day timetable. This meant that oral evidence and submissions were not concluded until the afternoon of the second hearing day (“Day 2”). So we adjourned the hearing for deliberations only on a later day (12 October 2024) and reserved judgment.[15]I must apologise to the parties for the considerable delay (for health and other personal reasons) in my producing the Judgment and Reasons following completion of our deliberations. Form of hearing, appearances and witnesses[16]The hearing was conducted in person at Southampton Employment Tribunal before a panel of three members. The claimant, Mr Tagoe, appeared in person, supported by his wife, Mrs Bridger-Tagoe, who spoke for him on some occasions when he was upset. The respondent company appeared through Mr Fernando.[17]Neither party was legally represented. There was very limited understanding on both sides as to the legal and procedural aspects of the proceedings. This contributed to further delays owing to the need for me to explain procedural matters and to assist the parties to a limited extent in presenting their oral evidence. This was in our view an essential part of ensuring a fair hearing for both parties.[18]The claimant gave sworn oral evidence, as did his wife Mrs Bridger-Tagoe. Mr Fernando gave sworn evidence for the respondent. No other witnesses were called by the parties. Documentation[19]The documentation available to us at the start of the hearing was unsatisfactory. There was no agreed bundle containing all relevant documents. Nor were there witness statements from the claimant or Mr Fernando.[20]There was no mutual disclosure by the parties of relevant documents. We were provided in advance of the hearing with the respondent’s 121-page bundle, which did not contain any of the claimant’s documents. A few further documents were sent to the tribunal on 10 August 2024 and just before the hearing started on 11 August 2024. In these circumstances, we had no confidence that the parties had in fact disclosed all the relevant documents within their possession or control.[21]The great majority of the documentary evidence we had at the start of the hearing was “late evidence, as the parties had failed to comply with the directions about disclosure and preparation of an agreed bundle in EJ Roper’s CMO Procedural matters[22]Neither party sought any “reasonable adjustments” when asked at the outset of Day 1 if anything was required.[23]At the start of Day 1 we told the parties that we would need to discuss the procedural situation regarding documentation, before deciding whether to continue with the final hearing or to convert the hearing into a preliminary hearing to consider strike out. We accepted that (as described above) there had been some attempts by the parties to comply with EJ Cadney’s directions. But there had clearly been serious failures by both parties in relation to compliance with EJ Roper’s directions in his CMO.[24]In the following discussions, we explored with the parties whether we all had the same documents, whether they were the right documents and whether there was anything significant that was missing. They told us they had supplied everything that was needed or that they wanted to rely on. We allowed them some time to consider carefully whether they had read the more significant documents and whether there was anything missing that was relevant. On resuming the hearing, both parties assured us that they had supplied all the documents they wished to rely on or were otherwise of any significance. They were both keen for us to proceed with the substantive hearing, despite the unsatisfactory position regarding documentary evidence.[25]After a brief adjournment we decided to proceed with the hearing, rather than convert it to a preliminary hearing to consider strike out. This was because we concluded it was likely to be possible to have a fair hearing and for the parties to present their cases and address the issues within the allocated time. The absence of proper witness statements from the two main witnesses was a concern, but we concluded that there was material in the bundle which conveyed the essence of their factual position and that this could stand as a substitute for the missing witness statements as part of their evidence in chief. We thought it right in the circumstances to hear evidence and submissions, on the basis that we could keep the fairness of proceedings under review. The parties were content with this course of action. We understood them each to agree that they had a reasonable understanding of the other’s factual case. In short, it was possible to have a fair hearing and it was in line with the overriding objective to proceed and to give the parties the chance to make their respective cases.[26]We admitted all the documentary evidence sent to the tribunal as late evidence despite some of it being supplied very late. It appeared to us to be relevant material and neither party could plausibly claim to be especially prejudiced by admitting the documents as both had failed to comply with directions regarding evidence. During the hearing we also admitted the claimant’s training record which Mr Fernando sent to the Tribunal by email. This appeared to us to be a potentially relevant document.[27]During the hearing Mr Fernando invited us to watch, on his laptop, video footage from the respondent’s CCTV system which captured the incident on which one of the more serious misconduct allegations was based (described at the time as “sexual harassment”). He said he had relied on this footage at the disciplinary meeting when he substantially upheld the allegation. He told us it captured the whole of the relevant incident. Mr Tagoe did not object to our viewing the video footage; indeed he encouraged us to do so. We decided to look at it because it was plainly relevant to the unfair dismissal claim as a “document” considered by Mr Fernando in the disciplinary process.
The Issues
[28]The issues as set out in EJ Roper’s Case Summary of 3 April 2024 are as follows: 1. Time Limits1.1 The claim form was presented on 3 July 2023. The Claimant commenced the Early Conciliation process with ACAS on 25 April 2023 (Day A). The Early Conciliation Certificate was issued on 5 June 2023 (Day B). Accordingly, any act or omission which took place before 25 January 2023 (which allows for any extension under the Early Conciliation provisions) is potentially out of time, so that the Tribunal may not have jurisdiction to hear that complaint.1.2 Was the unauthorised deductions complaint made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?1.2.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus the Early Conciliation extension) of the last one?1.2.3 If not, was it reasonably practicable for the claim to have been made to the Tribunal within the time limit?1.2.4 If it was not reasonably practicable for the claim to have been made to the Tribunal within the time limit, was it made within a reasonable period? 2. Unfair Dismissal2.1 The respondent accepts that it dismissed the claimant.2.2 What was the reason for dismissal? The respondent asserts that it was a reason related to conduct which is a potentially fair reason for dismissal under s. 98(2) of the Employment Rights Act 1996.2.3 Did the respondent hold a genuine belief in the claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances?2.4 Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?2.5 Did the respondent adopt a fair procedure?2.6 The burden of proof is neutral, but it helps to know the claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows:2.6.1 the claimant says the allegations against him were untrue and were fabricated and that the respondent did not have any evidence of the same; and2.6.2 the procedure was defective because the decision-maker had been involved in the earlier instances and was biased; and2.6.3 the decision to dismiss was unlawful because it was discriminatory.2.7 If it did not use a fair procedure, would the claimant have been unfairly dismissed in any event and/or to what extent and when?2.8 If the dismissal was unfair, did the claimant contribute to the dismissal by culpable conduct? This requires the respondent to prove, on the balance of probabilities, that the claimant actually committed the misconduct alleged. 3. Direct Race Discrimination (section 13 Equality Act 2010)3.1 The claimant describes himself as African.3.2 The claimant relies on one instance of less favourable treatment, namely dismissal. The respondent does not dispute that in principle dismissal is less favourable treatment.3.3 The Tribunal will have to decide whether the claimant was treated worse than someone else was treated, known as the claimant’s comparator. There must be no difference between the circumstances of this comparator and those of the claimant. The comparator can be an actual person or, if there is no actual comparator, then someone hypothetically. That is to say a hypothetical comparator whom the claimant says would not have been treated in the (less favourable) way in which the claimant was treated. The claimant relies on a hypothetical comparator. 4.3 If the claimant did suffer less favourable treatment above, was this because of race? Is the respondent able to prove that it was for a non-discriminatory reason unconnected to the protected characteristic in question? [We note here that the above issues must be read in the light of section 136 of the Equality Act 2010, explained below under “Applicable law”. A key question in dealing with Issue 3 is whether there are facts in this case from which we could decide, in the absence of any other explanation, that in dismissing the claimant the respondent treated him less favourably than it would have treated a hypothetical comparator.] 4. Holiday Pay (Working Time Regulations) B4.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?4.2 The claimant asserts that he was due some historical holiday pay from 2021. The respondent asserts this was paid in February 2023 together with a payslip which explains the calculation. 5. Unauthorised deductions from wages (Part 2 Employment Rights Act 1996)5.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted?5.2 The claimant asserts that he was due one week’s unpaid wages from June 2022. The respondent asserts that this was paid in February 2023 together with a payslip which explains the calculation. 6. Remedy Paragraph 6 of EJ Roper’s Case Summary sets out the issues of remedy. We did not consider these as they will be left to a separate remedy hearing. Findings of fact Introduction[29]We heard sworn evidence from the claimant and his wife and from Mr Fernando. The documents available to us are described above. We find the following facts proved on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to and considering the factual and legal submissions made on behalf of the respective parties. We have not decided disputed questions of fact which did not appear to us to be relevant to the issues.[30]The parties’ lack of experience of employment tribunal proceedings limited their ability to put forward their factual cases fully. We have had to make the best we can of the evidence available to us, and the parties’ submissions, even though neither were as complete as we would have wished.[31]The respondent’s bundle contains various written statements relating to alleged misconduct by the claimant which were collected by Mr Fernando in advance of the disciplinary hearing which led to dismissal. The makers were not called as witnesses. Before us the claimant disputed the accuracy of the contents of those statements in many key respects and questioned the motives of the makers as well as the motives of Mr Fernando in collecting them. However, their main relevance is as written evidence relied on by Mr Fernando when he dismissed the claimant. We have therefore considered them in reviewing the fairness of that dismissal. We are conscious of the need to avoid the risk of substituting our own views on the facts covered by the statements for those of the respondent at the time of the dismissal and/or at the time of the claimant’s appeal against dismissal.
Background facts
[32]The respondent company took over the business at which the claimant worked on 20 June 2022. This consisted of a petrol station and a food outlet, as far as we could tell. Mr Fernando became the manager of the business at around the same time. As we understood it, the respondent ran franchises from Rontec (in relation to the garage business) and initially from Subway, later changed to Greggs (in relation to the food business). Before the outlet was reopened as a Greggs outlet in March 2023 the food outlet had to be refurbished and the staff required training.[33]The claimant worked at the “Subway” food outlet at the garage for approximately 6.75 years from 9 May 2016. He became a supervisor in around February 2022 becoming manager (appointed by “Rontec”). He had a clean disciplinary record.[34]The claimant’s employment transferred to the respondent under the TUPE regulations on 20 June 2022. Around some 9 months or so later, on 16 March 2023, the Subway outlet re-opened as a Greggs outlet. This was a significant change for the claimant, not just because the products sold were different but also because the ethos, approach and practices at a “Greggs” are very different from what he was used to at the “Subway” outlet.[35]The size of the respondent’s overall business is potentially relevant in assessing the fairness of the dismissal. The information we have on this is limited but enough to give us an idea of the size and of the resources available. The ET3 form refers to 6 employees, which we understand to refer to the food outlet as that was also the figure given by the claimant in his oral evidence. The figure included a manager (the claimant) and at least one supervisor. We heard about a “Louis” who had left the business in early 2023 and been replaced by “Sapu” (of Sri Lankan heritage), who had been appointed as a supervisor by Mr Fernando without any process involving other applicants for the job.[36]We do not have a precise figure for the numbers employed in the garage side of the business, but understood this to be at least comparable to those working in the oood outlet, together with Mr Fernando. The staff numbers had to be sufficient to keep the garage and food outlet open for long hours every week. We heard there was a turnover of staff and occasional short staffing. Our estimate is that there was a complement of something like 14 or 15 staff in the business as a whole, although we did not have direct evidence of a specific figure. The exact number is not that significant because we have a reasonable sense of the size of the business. It was a relatively small business, but not a very small business. In terms of resourcing, as a franchisee of two larger businesses (Rontec and Greggs), Mr Fernando had some support from those businesses. For example, Greggs provided training the claimant was required to undergo in relation to their practices and expectations for a manager of a Greggsbranded food outlet. Rontec allowed one of their staff to act as the appeal manager in the claimant’s appeal against dismissal. Facts relating to wages claim for unpaid wages (for last 11 days of June 2022) and the time issues relating to that claim[37]The claimant’s employment contract provided for wages for any one month to be paid around the 10th of the next month, presumably to allow for the correct calculation of the amount due, which was dependent on hours worked. Mr Fernando explained (and we accept) that the previous owner paid wages “up to 20 June” when the respondent took over the business. Due to an administrative oversight, the claimant was not paid for the rest of June. This was a serious oversight and at the hearing Mr Fernando apologised to the claimant for this error.[38]There was some confusion in the oral evidence about the exact number of days the claim relates to and whether the claimant was paid by the previous employer for work done on 20 June 2022. Unfortunately, the payslip produced by the respondent in April 2023 in relation to this period does not itemise the days involved and we did not have sight of the payslip for the first part of June or for any earlier months of 2022. The claimant produced a bank statement for July 2022 which shows a (net) payment of £1013.29 on 8 July for wages from “AIM R & T Ltd TA RO” which we understood to refer to “Rontec” the trading name of the previous owner who was the claimant’s employer before 20 June 2022. We have no information about the deductions and so cannot be sure of the gross amount involved or of the number of hours worked for the previous employer. In any event, this payment was clearly the claimant’s wages for the first part of June before the business transfer.[39]We are satisfied, on a balance of probabilities, that the period for which the claimant worked but was not paid was 11 days. In his ET3 form Mr Fernando stated that he started as the franchise operator on 20 June 2022, which is consistent with our view that the claimant’s work on that day should have covered in his June pay from the respondent. There were however references in the oral evidence to a period of 10 days, which raises the question whether he was ever paid for 20 June by the respondent as part of the wages paid in April 2023. This might partly explain any shortfall in the amount eventually paid by the respondent.[40]Once he understood the error that had been made, Mr Fernando arranged for £657.88 to be paid into the claimant’s bank account on18 April 2023. This was based on a gross pay figure of £822.48, from which £164.60 was deducted under PAYE for income tax at 20%. The pay slip relating to this payment states that this was pay for 83.5 hours at £9.85 per hour. Mr Fernando told us this was based on the respondent’s records of the hours worked by the claimant. Understandably, he had to rely on those records because he had no other means of identifying the claimant’s working hours in June 2022. He said that the claimant would have been largely responsible for inputting the right information into the records. As mentioned above, we do not know whether the “83.5 hours” included time on 20 June 2022.[41]We accept the claimant’s evidence that he worked on all of the “missing” days, because the food outlet was short staffed at the time and he was having to work longer hours. We generally found the claimant to be a credible and convincing witness on this and other factual matters. He had not fully appreciated at the time what payment had been made to him in respect of unpaid wages or how the figure was arrived at. He freely admitted that he was not that good at reading and understanding emails and attachments.[42]The claimant’s evidence before us was that the sum paid was an underpayment. He said his working pattern at the time was to work 10 to11 hours per day because the food outlet was very short staffed. He was working 7 days a week for this reason. As a relatively low-paid worker, he was reasonably happy to do that. He believed he was underpaid by at least 25 hours (for which further gross wages of at least £245.25 should have been paid) or more. However, we consider that it is more likely than not that he thought the relevant period was 10 days, rather than 11 days. In any event, his case was that the records relied on by Mr Fernando cannot have been accurate. He referred us to his payslips from July and August 2022 in the bundle. We did not see any payslips for the first part of June or earlier months, when Rontec was his employer.[43]We accept the claimant’s oral evidence about his pattern of working in late June. He was working significantly more hours than usual owing to the food outlet being short staffed. The monthly payslips from 2022 broadly bear out what he told us about his pattern of working. In July and August 2022 he is recorded as working 263.5 hours and 260 hours respectively. In September, October, November and December 2022 the figures were 225, 222, 222.5 and 223 hours respectively.[44]The claimant did not recall (and could not reasonably be expected to recall) exactly how many hours were worked over the 11 days. This means that in deciding how many hours he worked we have had to do our best with the information available. Our conclusion is that the fairest approach is to use a figure of 10.5 hours a day. There was likely to have been some variations from day to day and we understood the claimant to put 11 hours as his maximum on any one day. That gives a figure of 115.5 hours over 11 days. As he was paid for 83.5 hours, the shortfall was 32 hours.[45]The wages for the last 11 days of June should have been paid on 8 July 2022. Rontec paid the claimant for the first part of June on that day (the last weekday before 10 July). It follows from that date that the claimant’s wages claim was presented over 6 months late. EJ Roper’s CMO gives a cut off date for claims of 25 January 2023.[46]It is in our view very unlikely that the claimant would have realised at the time that he should have received two payments for June wages from two employers. He had union support at his disciplinary and appeal hearings. It is more probable than not that the possibility of bringing a claim for unpaid wages would have been discussed with his union representative. He initiated the Early Conciliation process on 25 April 2023, the day after he was sent his dismissal letter, not waiting for his appeal. He told us (and we accept) that he also consulted the CAB, who helped him to fill in his ET1 form as he could not do that effectively without their help. Facts relating to the holiday pay claim[47]Mr Fernando accepted in advance of the hearing that the claimant had not been paid in lieu of his accrued but untaken holiday entitlement as it stood at the time of the dismissal (24 April). He arranged for a net sum of £1413.96 to be paid into the claimant’s bank account on 25 January 2024. This was for 120 hours relating to the period from 20 June 2022 to 31 December 2022, which Mr Fernando accepted in his ET3 form had not been paid. Mr Fernando provided a calculation based on working 27.86 weeks and an annual entitlement to 5.6 weeks’ holiday per year. He also provided a separate calculation for the period from 1 January 2023 to 30 April 2023, giving a figure of 74 hours resulting in a net payment of £780.87. This sum appears on the claimant’s payslip for April 2023. Before us, the claimant did not dispute the accuracy of the calculations provided. We accept them as accurate in relation to the periods they relate to.[48]We have no information as to(a) whether the claimant had any accrued but untaken holiday entitlement built up before 20 June 2022 and(b) if so, whether his previous employer paid him in lieu. Under the TUPE regulations any such entitlement would in principle have transferred to the respondent. However, in the absence of any evidence on this point we can only make findings for the period from 20 June 2022. The claimant’s contract of employment[49]We were provided in the respondent’s bundle with a copy of an employment contract for a staff member, whose name and details are redacted, starting in March 2024. We understood this to be provided on the basis that the claimant’s contract would have been in the same standard terms.[50]The contract in the bundle refers among other things to an employee handbook, to 28 days holiday entitlement per year, to holiday entitlement having to be taken in the calendar year to which it relates (with no compensation if not taken) and to a workplace pension scheme being available. Wages for any month are to be paid on or before the 10th of the next month.[51]An annex deals with “Disciplinary rules and procedure”. This refers to taking informal action where appropriate, and to disciplinary action being taken after a full investigation of the case. Dismissal for a “first breach” would only follow in the case of gross misconduct. A hierarchy of sanctions is established – note on file (performance issues), written warning, final written warning and dismissal or other sanction. An illustrative list is given of things which are “normally regarded as gross misconduct”. These include ”theft or fraud” “serious misuse of an organisation’s property”, “unlawful harassment”, “bringing the organisation into serious disrepute” and “a serious breach of health and safety rules”. The annex states that, if accused of gross misconduct, an employee may be suspended from work on full pay, normally for no more than five working days while the alleged offence is investigated. If at the end of the full disciplinary procedure the organisation is satisfied that gross misconduct has occurred the result will normally be summary dismissal without notice or payment or in lieu.[52]There were some references to terms of the claimant’s contract given in the evidence, such as the payment date for wages and a holiday entitlement of 28 days (5.6 weeks) per year. These were consistent with the document in the bundle. We would expect the terms of the contract we saw to be broadly the same as the claimant’s contract, including the annex on disciplinary matters. The annex is nothing out of the ordinary and is what we would expect to see in any standard form based contract of employment. The claimant did not dispute the description of gross misconduct in his contract. So we find that the claimant’s contract of employment contained the same or a very similar annex dealing with disciplinary matters. Beyond that we cannot be sure about the precise terms of the claimant’s contract. Events leading to the instigation of the disciplinary process against the claimant[53]There is no evidence of any disciplinary issues in the claimant’s employment by Rontec from May 2016 until the events in March 2023 that led to his dismissal. He had a clean record. During this time he became a supervisor and later the manager of the “Subway” outlet, before the respondent took over the business in June 2022.[54]During 2022 and until he was suspended on 21 May 2023 the nature of the claimant’s employment changed significantly. Becoming manager placed new and more significant responsibilities on him. There was a period in mid-2022 of around three months when the food outlet was short staffed and the claimant was working longer hours than usual. The change of employer on 20 June inevitably meant that there were likely to be changes in attitudes and expectations when Mr Fernando, as an individual, became in effect both the owner and senior manager of the business. Under the Subway franchise, there had been a relatively relaxed attitude to such things as staff taking food and drink items from the outlet, or to providing free items to customers, for example in response to a complaint. Not surprisingly perhaps, Mr Fernando became conscious after he became involved in the business that these practices (whether or not consistent with the rules applicable at the time) cost him money.[55]After the respondent took over the business, Mr Fernando decided the respondent should become a franchisee of Greggs, and he made arrangements for the Subway food outlet to become a Greggs food outlet. What is on offer to customers at a Greggs outlet is different from a Subway and we understood from the evidence that the ethos, practices and expectations (including in relation to health and safety requirements to ensure customer safety) for a Greggs outlet are also different. This inevitably meant that the responsibilities and expectations placed on the claimant as manager would change from what he had previously been used to.[56]At the time of the events in question in this case we gathered from the claimant’s oral evidence that almost all of the staff working in the business (in the garage side or in the food outlet side) were of Sri Lankan heritage, as was Mr Fernando. The evidence on this was not as precise as we would have wished, But we did not understand Mr Fernando to dispute what the claimant said about this. There were references to one or two other non-Sri Lankan members of staff having worked there previously. We did not hear about any non-Sri Lankan staff working in the garage side of the business.[57]As for the staff of the food outlet there was one staff member in the food outlet when the claimant was dismissed (“Joe”) who features in the evidence and was described as English. We gathered that he was not of Sri-Lankan heritage. We heard of another staff member (“Louis”) who had been replaced by Joe. So at the time of the dismissal there were two our id 6 staff working in the food outlet (including the claimant) who were not of Sri Lankan heritage. We did not hear of any others, and we understood the three other people who were referred to by name during the hearing to be of Sri Lankan heritage.[58]The claimant complained to us that the other staff used to talk in their own language between themselves and he felt excluded. We understood Mr Fernando not to dispute this, although he said (and we accept) that he spoke English and that the staff were expected to speak in English to customers.[59]As manager, the claimant had to undergo training in the practices and expectations required by Greggs. We understood that for a short while before it re-opened as a Greggs the food outlet was closed while it was refurbished and in the previous month (February 2022) the claimant and others attended off site for training from Greggs trainers. This was followed by a period of training and supervision on site by two Greggs trainers. The claimant was under training and working under supervision when the events that led to his dismissal occurred between 16 and 21 March 2023.[60]There was some confusion in the written and oral evidence as to exactly when things happened between 15 to 19 March 2023. A muddle by both Mr Fernando and the claimant as to dates and the days of the week involved did not help. However, we were able to form a reasonably clear picture of what happened and can make the following findings.[61]The claimant was off work on 15 March because he was unwell. This was not convenient to the respondent as the scheduled date for re-opening as a Greggs food outlet was the next day. It was obviously a busy time for everyone in the respondent’s business.[62]Early on the morning of 16 March Mr Fernando called a staff meeting at which he informed those present of a change in policy relating to the food outlet. This was Mr Fernando’s own decision. Staff were no longer to take or give away food or drink items without his permission. They could have one or two coffees, but otherwise they would have to pay for any food or drink with a 50% discount. It was common ground that this involved a significant change from the practice that had operated when the outlet was a Subway and the employer was Rontec, as described above. The claimant had been used to a much more tolerant approach to this sort of thing. He felt he had a considerable amount of discretion in allowing staff to have free food or drink, to use unsaleable items or to give free food or drink to customers when thought appropriate (for example to respond to a complaint). He thought that the actual marginal cost of these things was small. Whether this tolerance was consistent with the employer’s formal policies was never made clear to us.[63]This change of policy involved a significant change in culture for existing members of staff, and could reasonably be expected to take a while to bed in.[64]The claimant has always maintained that he was not present at the staff meeting, being still unwell at home when it took place. He said his colleague Sapu had been trying to ring him and that at some point in the mid-morning of 16 March Sapu appeared at the claimant’s house and told him things were happening at work that could affect him or change his position, and that he should go in. He claimant said he was in the shower at the time and referred us to photographs of him outside his house in a towel, with Sapu also in the shot. This explained to us why he had sent the photographs to the Tribunal the day before without any explanation. He told us that he then went into work, being given a lift by his wife.[65]It was common ground that the claimant spent a proportion of 16 March at work. We understood the respondent’s position to be that he was at work as normal on 16 March or, more accurately, that at the time of the dismissal and/or the appeal hearing they had reasonable grounds to believe he was at the meeting. After the appeal hearing, the appeal manager stated in his decision letter that 4 members of staff said the claimant was present at the announcement on 16 March. It is not clear who they said that to (Mr Fernando or Mr Balachandran, the appeal manager) and there is no record in the bundle of exactly what they said or whether anyone else was asked the same question. There is no written statement in the bundle that(a) contains the evidence of any of the staff members who asserted the claimant was present,(b) suggests the claimant was supplied with this evidence in writing (other than the reference to their evidence in the appeal decision letter) or(c) suggests the claimant was offered the chance to comment on their evidence or, perhaps, counter it with any evidence of his own (such as a statement from his wife).[66]On the face of the evidence before us we would on the balance of probabilities have accepted the claimant’s detailed account, not least because there is no direct evidence to contradict it and the only evidence to that effect is the brief hearsay statement in the appeal decision letter. However, the question whether he was present at the meeting was directly relevant to several misconduct allegations that were upheld after the disciplinary meeting by Mr Fernando. That is because their categorisation as misconduct (and as serious or gross misconduct) depends on whether the claimant was aware of the change of policy when, as Mr Fernando saw things, he immediately began contravening the new rules, in front of the respondent’s CCTV cameras over the next 3 or 4 days. We are conscious that we must not substitute our own views of the facts when assessing the fairness of the dismissal (including for example in relation to whether the question whether the claimant was present was properly investigated and dealt with in the disciplinary and appeal processes on reasonable grounds). That turns on whether the respondent, acting through Mr Fernando in the disciplinary process and Mr Balachandran in the appeal process, acted reasonably (i.e. within the band of reasonable responses) in how they dealt with the misconduct allegations in question. We address these matters in our conclusions below.[67]Mr Fernando told us (and we accept) that he did not follow up his announcement of the new policy with anything in writing (such as a notice in or near the food outlet) to remind staff of the new policy or to confirm what he had told them. He agreed with the claimant that he never mentioned the change of policy to the claimant after the meeting. The evidence was consistent with Mr Fernando having assumed that all staff heard his announcement. It was a busy time so we did understand why he might have assumed that. When the claimant eventually made clear his position that he was not present, it appears that Mr Fernando did not know or could not recall if the claimant was present. We did not see any business records that might have thrown any light on exactly when the claimant arrived at work on 16 March 2023.[68]On around 19 or 20 March 2023 Mr Fernando received a complaint from one of the Greggs supervisors about inappropriate behaviour by the claimant, which included unwanted touching without consent. There were also complaints that the claimant had falsified health and safety records. At some point around this time there was also an allegation made that the claimant had mentioned in the pub to a colleague that he would like to rape one of the supervisors. There was no corroboration of this and the specific allegation was not pursued and was dropped. The claimant was informed of this around the time of his suspension and was understandably shocked and upset by the allegation, which he has always strenuously denied. He told us he was a family man and that the allegation had affected his relationship with his wife and family and that he could not understand why anyone would say such things about him. He also denied ever going to the pub with the person in question. He said he did not socialise with “boys” who were years younger than him. We had no reason to believe that the allegation had any substance.[69]Mr Fernando consulted one of his franchisors (Rontec, we understood) and decided he needed to investigate what he thought were allegations of serious or gross misconduct. On 21 March he suspended the claimant due to the serious nature of the allegations and the need to conduct a formal investigation. It also appears that Mr Fernando discovered a number of other potential misconduct issues (as he saw them) around the same time. When the claimant was told by Mr Fernando in person that he was being suspended, his response was heated, which Mr Fernando found uncomfortable. The claimant was also asked by Mr Fernando to return some items of uniform. We note that the claimant took offence at this and has always viewed this request as prejudging the outcome of the investigation. Mr Fernando denied that was the case and said the request was only made for administrative reasons.[70]During the investigation Mr Fernando became aware of multiple allegations against the claimant of misconduct of various kinds. He regarded them all as allegations of serious misconduct. He was receiving external HR advice and support. We understood this to be provided by Rontec staff.[71]When the claimant ceased working at the food outlet he was replaced, and the evidence we were given was that he was initially replaced him by Sapu (a relatively new member of staff who was a supervisor) and later by another South Indian male, although we do not know his exact ethnicity.[72]In his investigation Mr Fernando spoke to members of staff and obtained statements which he regarded as sufficient evidence to justify initiating a formal disciplinary process for a number of misconduct allegations. We did not see any contemporary records of who he approached and what they said to him.[73]Mr Fernando did not want to interview the claimant in person as part of the investigation. His reason was that he feared a hostile reaction by the claimant, after his experience of the claimant’s response to being suspended. There is no evidence that he explored ways of reducing the chances of an interview (in person or online) becoming too highly charged. Instead of an interview, he sent a letter to the claimant by email dated 5 April 2023 containing questions which the claimant was invited to answer in writing on or before 12 April. These take up about an A4 page and a half in a small font. The questions were rather pointed and many of them hint at detailed allegations without saying directly what they were (or what the evidence was and/or who made them).[74]A few random examples of the questions are: “Specifically, on 18th, 19th and 20th March did you give food or drink away for free? If yes, why” “Do you believe you can take items to consume from the store for free” If yes, why do you think this is acceptable practice?” “Can you recall offering ganja/weed to customers when serving them, even if this was meant in jest from your perspective? If yes, please provide your account of what you do remember?” “Do you recall being asked by a colleague not to make physical contact with them and then proceeding to do so? Please detail any recollection that you have on such circumstances, from your point of view, specifically in relation the 18th March 2023.” “Where should the pizza topping cheese be stored and whose responsibility is this?”[75]Before the list of questions, the letter refers to the investigation of “points of concern” following the claimant’s suspension on 21 March 2023 and describes what will happen. This could include a formal disciplinary hearing “notice of which shall be sent to you at the appropriate time in writing, and will enclose relevant evidence to assist you in preparing for the next stage”. He was instructed not to contact any colleagues without permission.[76]After the list of questions, the letter referred to the nature of the allegations of concern and invited the claimant to make him aware of any further explanations, detail or supplementary information that might be useful to the investigation. He was then asked to read through his “investigation statement” to ensure he was happy with the detail and email back by 10 am on 12 April. Failing that Mr Fernando would have to conclude the investigation without the benefit of “your explanations”.[77]The claimant is a person who freely admits to not being good at opening, dealing with and understanding emails and formal documents or at producing them. We accept what he said about this. There was clearly no chance of him being able to respond in detail in writing to the questions without a lot of external help.[78]The claimant responded briefly in writing twice according to the documents in the bundle. In an email dated 5 April he denied some of the allegations in fairly general terms (for example by saying he did not take drugs or sell drugs). He suggested he was having fingers pointed to him because “Im a Rastaman or the customers calls me that”. He complained that ever since the Greggs opened Mr Fernando had “started creating problems by saying I don’t want to be a manager”. He said he had not said that and “now you accused me with all this allegations after 3or 4days work whiles I was still training”. He denied the harassment and said “ I demand full ((Prove and evidence)) because this deformation of character. Im a married man with kids.” He denied doing anything wrong with “Probing and logging” food temperatures, which he said he had been doing with Subway for 8 years. As for the “free food you are talking about I find it untrue”. He suggested that if Mr Fernando as manager saw him doing this he should have approached him and asked him the reasons. He went on “ Because in this business we treat customers fairly. Instead you choose to suspend me for doing my job.”. He queried what the question about “Pizza Toppings cheese” was about. The final paragraphs read: “Please stop labelling me with company Policies because if you understand this, you won’t be accusing me with all this allegations after I questioned you of my wages and from last year. Note// I was still under training when you chose to suspend me without confronting the Trianer, instead you load me with all this allegations to distract me. Im a happy man and I enjoyed doing my job well, I will continue to be the happiest man”[79]The second response in the bundle appears to have been sent by email on 7 April and says “This are my response and as I said I demand full prove and Evidence from me Harassing Alisia This is defamation of character thanks”.[80]It is clear from the responses that the claimant was denying wrongdoing, but without addressing the detailed list of questions. He did though take the point that he was under training at the time and that Mr Fernando could have raised his management concerns about things like taking food with him directly.[81]The investigation culminated in an “Investigation report” which identifies a number of specific allegations and issues and briefly notes what was done or discovered on each, listing the witnesses or in some cases the CCTV evidence. There is one allegation mentioned that was investigated but not pursued in the disciplinary proceedings, an allegation that the claimant had sold drugs.[82]We note that under “Other relevant information” there appears the following statement: “I, Anton Fernando, had informed all staff on 16th March 2023 that they could have 1 or 2 coffees whilst on duty, but that they could not take anything to consume off the premises and must charge for goods taken off the premises. I later advised that if they wanted to buy food they could discount it by 50% and keep the receipt and only food consumed by employee not for family, friends or customers”. The disciplinary process and the claimant’s dismissal[83]On Wednesday 12 April 2023 an email was sent to the claimant at 9:59 pm attaching a letter inviting him to a disciplinary meeting on 17 April at 2.30 pm at a hotel. This letter was accompanied by the investigation report and a number of witness statements referred to in the report.[84]The letter labels the allegations “gross misconduct” referring to “Theft, serious misuse of organisation’s name, harassment, breach of food safety law” on “16th, 18th, 19th, 20th March 2023”:• Under “Theft” were listed 8 separate allegations relating to incidents between 16 and 20 March. These relate to 3 instances of taking food without paying (one of which is not dated and refers to “this happened on multiple occasions”), an incident of taking a reusable cup worth £2.75, and 4 incidents of giving away food or drink. One of those incidents (on 19 March) was challenged by Mr Fernando, according to the letter. The values stated for the items involved ranged from £1.00 to £5.00.• Under “Serious misuse organisation’s name” were listed two allegations. One was offering customers “ganja/weed” with their purchases, damaging Gregg’s and Rontec’s reputation. The other was telling Elisha he was getting drugs from customers on site and that he used to give this out over the subway counter. This allegation also included offering her free drugs on one occasion in return for a lift.• Under “Sexual Harassment” was an allegation relating to “holding Elisha from behind without her consent" , claiming “ Elisha is his wife and pressed his body against her and held your arms around her chest in kitchen area in front of other member of staff” Also, he “ignored her request that not to make any physical contact with her and you continue to behave in an unprofessional manner”.• Under “Breach of health and safety law” are listed 5 allegations. Two related to incidents of falsifying temperature records on three occasions. One related to instructing a sandwich maker to use out of date products. One related to mis-storing pizza topping cheese. The last related to packing overcooked savouries with a view to taking them home rather than disposing them in the waste.• After the list of allegations is a brief list of evidence, referring to CCTV footage (which the email said can be “viewed before the meeting starts”), witness statements from 3 named members of staff and from 2 named franchise partner managers as well as Mr Fernando as an “eyewitness”. There was a short statement from Mr Fernando stating he saw the incident in the 6th allegation, queried it with the response from the claimant being “It’s my brother.”, and told him not to give things to customers for free.”[85]The letter also included a reminder of the claimant’s right to be accompanied and a warning that “Since the Company views the allegations against you as gross misconduct offences, I must inform you that the outcome ... could result in your summary dismissal ....”.[86]There was some dispute as to when this email was read. The claimant said it was on Friday 14th April, the “deadline day” as he called it (referring to the day he was supposed to say if he could not make the hearing scheduled for Monday 17 April). We note that it is unlikely that an email sent at about 10 pm on 12 April would have been opened and read by the claimant the same day. So in practice the question is whether he saw the email and attachements on the 13th or 14th of April. We accept the claimant’s evidence on this,.as we have no evidence to contradict it and regarded him as a credible witness. The email address used for these communications to the claimant is in someone else’s name. That may suggest the claimant was not using an address of his own, but we can make no definite finding on this point.[87]The claimant was not sent the letter and attachments in hard copy. We do not know if he had any means of printing them out before Monday 17 April, but we consider it more probable than not that he did not.[88]It follows from the claimant’s evidence that he had around 3 days, including the weekend, to understand the allegations and the evidence, to contact his union for help and to prepare for the meeting at 2.30 on Monday 17 April. If he did see the letter on 13 April that would mean he had around 4 days to do those things. He also had to get over the shock he told us he felt at the number and nature of the allegations against him. He must have had a general idea of some of the issues (from what he had been told when suspended and from the list of questions) but he may have thought an investigation would exonerate him of some or all of the allegations. He certainly had no details until he saw the email and attachments of what he actually faced in the disciplinary process.[89]We expect that he contacted his union soon after seeing the emailed documents. It is not entirely clear when the union representative became involved, but it appears to us unlikely that would have had more than a day or so (at most) in which to consider the case, even assuming that he had no other commitments.[90]A disciplinary hearing was held on the morning of 18 April 2023 which ended at 15.13 in the afternoon. We understood this to have been re-arranged to accommodate the claimant’s union representative. It was chaired by Mr Fernando, accompanied by a note taker and an HR consultant Ms Whalen who attended to “support the process” as Mr Fernando put it in the decision letter. The claimant was supported by a union representative.[91]There is a draft script for the disciplinary meeting in the bundle which indicates that Mr Fernando was receiving HR advice and support at this time.[92]The bundle also contains a record of the meeting. This record cannot be anything near a verbatim record as it only consists of 4 A4 pages in fairly well spaced lines and a larger than usual font, for a meeting that appears to have lasted between 3 and 4 hours. We are unable to tell whether, or how far, the draft script in the bundle was used.[93]The more significant parts of the meeting as recorded are the following:• The record indicates that the claimant denied the allegations or that he had done anything wrong (for example because he did not know he wasn’t supposed to take food).• He said he only gave food away for goodwill when someone complained, and he did not know he was meant to put it through the till because he was still under training. [We note here that there is no mention of the announcement to staff on 16 March, which is consistent with the claimant’s position that he was not present and did not know about the meeting or what had been said. It also appears likely that Mr Fernando was unaware of the claimant’s position on the facts, that he was not present.]• The record indicates that the claimant denied the drug related allegations forcefully, although he referred to customers coming in and joking with him. He denied the sexual harassment allegations although he referred to “Hugging someone I joke a lot I didnt mean anything”. It is not clear exactly what was said here.• He objected to the food temperature allegations and the other food-related allegations as he was under training at the time.• He denied the “out of date goods” allegation saying the lettuce in question (showing a picture to Mr Fernando) was dated 19 March and the alleged incident was on the same day, despite the witness saying it was dated 18 March. He did not know why “Sudha” was saying this, discriminating against him.• He denied he took burnt food home.• The claimant said he wanted a fair investigation.• The union representative stated that the claimant gave great customer service which may at times involve giving food away in line with industry practice and that the claimant felt he was being victimised by staff.[94]Mr Fernando sent the claimant a decision letter dated 24 April 2023 stating that after the disciplinary hearing on 18 April his employment was being terminated with immediate effect in line with the respondent’s disciplinary policy. There was no notice period or payment in lieu of notice. This meant that the claimant’s last day of service was 24 April 2023.[95]The letter recounts the misconduct allegations in the letter the claimant was sent by Mr Fernando on 12 April. It summarises some of the evidence and what was said at the hearing by the claimant. The letter shows that he did not uphold or fully uphold the misconduct allegations described in paragraph 96 below. He upheld all the others stating (in various ways) that he had a reasonable belief that the claimant was guilty of the misconduct alleged. We read his findings as meaning that he believed, on reasonable grounds, the various facts stated in the letter.[96]The letter dealt with the allegations that were not upheld as follows:• It states that Mr Fernando did not have enough evidence to prove that the claimant did the act alleged by allegation 7 (hiding food products in the shop).• The decision on allegation 9 (offering customers drugs with their purchases) was not entirely clear. The letter records that the claimant said that customers joked with him that he was the “ganja man” (being of Ghanaian origin and a Rastafarian) but he denied ever offering drugs. The decision was “I continue to believe that it is reasonable that you discussed drugs with customers and acted irresponsibly in your capacity as store manager and bringing down the reputation of the organisation through your unprofessional behaviour”. That appears to be a finding of misconduct, albeit of a less serious character than and somewhat different to the actual allegation. We read the word “reasonable” as meaning reasonable to conclude or believe.• As for allegation 10 (a more serious drug related allegation, related to getting drugs from customers and supplying them on site) the letter states that the claimant disputed the allegation and denied the behaviour. A lack of tangible evidence meant that Mr Fernando “cannot substantiate this allegation either way”. Clearly Mr Fernando did not consider the serious misconduct alleged to have been proved.• As for allegation 11 (serious allegations of inappropriate behaviour with a female partner support manger), the letter makes clear that the allegations were of gross misconduct. The letter refers to the claimant agreeing that he had hugged the manager “in a friendly manner” from behind but that he denied that she had told him to stop and that he ignored that request. The decision appears from the letter to have been that Mr Fernando had formed the belief that some at least of the allegations were substantiated (“I do have a strong belief that you held her from behind without her permission, disrespected her personal space, and caused her to feel uncomfortable and unsafe”). But this decision appears to relate only to part of the alleged misconduct, which suggests that Mr Fernando considered other aspects of the allegations were not substantiated. The evidence referred to is a written statement from the manager, a written statement from another member of staff (Sapu) and CCTV footage of the incident. We note that we were shown the footage during the hearing and that Mr Fernando told us that the footage captured the incident complained about. We will come back to this later in these Reasons.• The letter states that allegation 15 (breach of food safety relating to storage of pizza topping) was not substantiated either way due to lack of evidence• The same went for allegation 16 (breach of food standards in relation to taking overcooked savouries home, which were supposed to go into waste). The letter refers to the claimant saying that he did not take food home, that he had no idea why the allegation had been made and that the person who made it did so “because she thinks you are from Africa”. Mr Fernando goes on to say that he had no reason to believe she would make up the allegations or that she would treat any staff member differently due to race[97]As for allegation 12 (breach of food safety on an occasion when the claimant recorded a temperature without actually checking the temperature in question), the conclusion was that the claimant had not carried out the relevant checks, breaching health and safety procedures. Allegation 13 related to two incidents of recording a temperature without actually checking what it was (one of which may also have been the basis of allegation 12). The letter indicates that the claimant had 4 weeks of manager training at another Greggs outlet, when the reasons for the requirements were explained. There is no evidence referred to, but the conclusion was that he did not carry out the checks and he falsified records.[98]The letter goes on to say that the allegations came from 5 different colleagues and there was no evidence that they were motivated by race. Mr Fernando had reached a reasonable belief that most of the allegations “have been founded” (ie are well founded). The gross and serious nature of the misconduct meant that he also believed that “your actions have irreparably breached our trust and confidence in you”. He believed summary dismissal to be the most appropriate outcome in the circumstances. The rest of the letter details various consequences and outstanding matters, including the need to return any clothing supplied by Greggs. The “minutes” of the meeting were attached and the claimant was told that inaccuracies could be corrected. The claimant’s appeal[99]The claimant appealed against his dismissal in writing, setting out some grounds (although not all are readily comprehensible). In a response letter Miss R Murray (an HR consultant) set out the reasons for dismissal (i.e. the substantiated allegations, according to Mr Fernando), as follows.• “On the 16 March 2023, at14.01 you took food from Greggs coffee cup storage cupboard without paying, worth £5.00, hiding it inside a black jacket• On the 17 March 2023, at 14.23 you took food from the coffee cup storage at the front cupboard without paying worth £4.00.• On the 18 March 2023, at 12.11 you took a Greggs coffee reusable plastic cup worth £2.75 from the shop and food and left at14.02 without paying• On the 18 March 2023 at 7.15am when another member of staff was serving, you gave sausage rolls in 2 bags worth £1.50 to customers for free• On the 18 March 2023 at 7.29 when another member of staff was serving you gave away a pasty worth £1.00 for free• On the 19 March 2023 at 10.34 you gave coffee worth £1.35 to a man without charging him. When Anton asked you why you gave it for free you replied it’s my brother• On the 20 March 2023 at 12.34 you gave a customer a free cold drink and hot pasty worth £6.00 with Joe was serving• It is alleged that you were offering customers drugs “Ganga/Weed” with their purchases, this behaviour brings a negative reputation to Greggs and Rontec. As a staff member you are representing the company• On the 18 March 2023, Elisha Innis, Franchise Support Manager made a complaint that you had failed to respect her personal space by holding her from behind without her consent. You claimed that she was your wife and pressed your body against her and held your arms around her chest in the kitchen area in front of another member of staff Sapumalbandara. You also ignored her request not to make any physical contact with her and you continue to behave in an unprofessional manner• Alleged breach of food safety, further particulars being on 18 March 2023 you recorded temperature recordings while sitting inside Greggs office without moving the log book and probe• Breach of food safety standards, 18 and 19 March you falsified legal documents not recording temperature checks using probe in food safety logbook•19 March 2023, you advised sandwich maker Sudashana to use out of date products which were outdated by 18 March 2023”[100]Some of the items in the above list are not an accurate summary of what was actually decided by Mr Fernando at the disciplinary hearing, as set out in his decision letter. In particular, the 8th and 9th bullets (allegations 9 and 11 in the decision letter relating to offering drugs and sexual harassment) appear to record the original allegations rather than the actual findings. That is potentially significant in that those were in our view the most serious allegations.[101]The letter stated that Ms Murray would chair a hearing on 25 May 2023, accompanied by Mr Kovarathnan Balachandran to act as appeal manager, which would be recorded. The letter informed the claimant of his right to be accompanied by a work colleague or union representative. We understood neither of the individuals concerned to be employees of the respondent, although Mr Balachandran said he had been a previous manager in the business when it was owned by Rontec.[102]An appeal hearing took place on a video call on 30 May 2023. We accept the transcript in the bundle as an accurate account of what happened. The meeting was a lengthy one as the document runs to 67 pages. We note the following from the transcript, although neither party referred us to it in any detail during the hearing: There was considerable discussion at the meeting about the “free food” allegations. The claimant said among other things that the Greggs had only been open 3 days and he was training. Mr Balachandran said that the procedure had always been to put this sort of thing through the till. It seems from this that he was, in effect, giving evidence against the claimant in some of what he was saying. There were similar exchanges about other incidents. During the discussion it is clear that the claimant was flatly denying some of the allegations, for example he denied giving an orange drink away. For other incidents he accepted he did the act, such as giving away a coffee to a customer, but said he had not done anything wrong because they were doing free coffees as a promotion for the new Greggs outlet. Ms Murray and Mr Balachandran said it looked as though he was giving away the promotional leaflets with the free coffee rather than giving the coffee in return for a leaflet. There is a statement by Mr Balachandran that he would need to investigate the question whether the claimant was present at the staff meeting on 16 March further. Towards the end the union representative referred to the fact there were a lot of allegations all at one time. He said that Rathan (Mr Balachandran) had worked as the claimant’s manager and had not had the same sort of suspicions about the claimant as Mr Fernando, which suggested something was wrong. Either the claimant was acting out of character or there was (as he suggested) some sort of set up to remove the claimant. Even if procedures had not been strictly followed, this was normal and he referred to the low value of the items and the fact that as manager the claimant had been given no discretion at the Greggs outlet. It was all out of proportion and did not justify the claimant losing his livelihood.[103]Mr Balachandran sent the claimant an outcome letter of two pages dated 2 June 2023, accompanied by the transcript of the meeting. In the letter he focused on two grounds put forward by the claimant.[104]One das that there was no CCTV evidence for stealing any items. The conclusion was that the claimant contradicted himself by saying he had worked for 7 years and knew procedures while also saying he was under training. The appeal manager thought he should have asked what was permitted if he did not know. The claimant also said at the hearing that although he took food away it was allowed. The letter then says “However, statements provided by Manish, Raj, Sapu and Joe confirm you were indeed present on 16 March 2023 when Anton advised as to the procedures in respect of food and drink for employees. As such, I believe your account of events is inconsistent. Therefore the conclusion is that we cannot find any grounds to substantiate your appeal.”[105]The other ground was around “custom and practice” (in relation to the foodrelated allegations). This was rejected in similar terms. The letter recounts what was announced: I or 2 free drinks a day, nothing taken off the premises and food and drink must be paid for, subject to a 50% discount with receipts kept. This was only for employees, not others. The letter repeats that four members of staff recalled Anton saying this and that the claimant was present. Mr Balachandran then states he believes the claimant was there and therefore “we” could find no grounds to substantiate your appeal on this point.[106]We note that there is no reference here to viewing any CCTV evidence from 16 March, to any statement from Mr Fernando or to any further discussions with the claimant or anyone else on the point.[107]The letter went on to state that various other matters raised by the claimant were not relevant to the appeal because they were not things for which he was dismissed. The letter rejected the suggestion he had been bullied or victimised or the outcome prejudged. Reference was made to the fact that four allegations were not upheld. Nothing had been provided to make Mr Balachandran believe that overthrowing the decision (to dismiss) was the right thing to do. So the conclusion was that he was fairly dismissed and the appeal was not upheld. This was the end of the road for the claimant in terms of his employment with the respondent. The claimant told us that since his dismissal he had found work as the manager of a betting shop. Relevant law (1) Time limits
Relevant law
[108]The Tribunal does not have jurisdiction over a claim made after the end of the period permitted by the relevant legislation (within 3 months of the relevant date, plus an extension to reflect the time spent on Early Conciliation) unless the Tribunal decides to extend time having applied the relevant legislative test.[109]It is common ground that there are no time limits issues in relation to the claims for unfair dismissal, direct race discrimination or unpaid holiday pay. The relevant date for those claims is the date of dismissal, and they were all clearly made within the permitted period after that date. As stated by EJ Roper in his CMO, the only claim in these proceedings where there is a potential time limits issue is the claim for unauthorised deductions from wages.[110]Section 23(2) of the Employment Rights Act 1996 provides (so far as material): “(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with--(a) In the case of ... a deduction by the employer, the date of payment of the wages from which the deduction was made, or(b) ... “.[111]This means that a complaint made out of time is outside our jurisdiction, subject to section 23(4). Section 23(3) deals with cases where there is a series of deductions, and is not relevant to the claimant’s wages claim which is based on one failure to pay wages for one period in June 2022. Section 23(3A) refers to the extension of the period of three months to include time spent on Early Conciliation, under section 207B (which was the basis on which EJ Roper set out the position in Issue 1.1 above).[112]Section 23(4) permits the tribunal to extend time. It provides: “(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such period as the tribunal considers reasonable.” Section 23(4A) places a limit on the effect of subsection (4) but is not engaged in this case.[113]Subsection (4) is a compressed provision which reveals that there are two parts to determining whether to extend time. First, we must determine whether it was “not reasonably practicable” for the claimant to make the complaint within the permitted period (three months, plus any Early Conciliation extension, after the date on which the wages in question were or should have been paid). Secondly, if satisfied that is the case, we may only consider the complaint if we consider that it was in fact brought within a reasonable period. The case law requires us to consider all the circumstances of the case in what is, essentially, a factual enquiry.[114]As will be seen in our conclusions, we have considered the matters described in paragraphs 121 and 122 in deciding whether to extend time for the wages claim. We have not relied on a possible alternative basis for considering the claim to have been made in time. Following their assumption of the garage business on 20 June 2022 the respondent completely failed to pay the claimant anything for the last 11 days of work in that month until 23 April 2024 when some of what was owed was paid to him. It may be arguable that in those circumstances there was an “unauthorised deduction” of the shortfall in the amount paid which would start time running again. However, we did not raise this point with the parties during the hearing, so we prefer to rely on our analysis of the more conventional matters set out above which form the legal basis of Issue 1 as set out in paragraph 30 above. (2) Unfair dismissal[115]Section 94 of the Employment Rights Act 1996 confers on employees with at least two years’ service the right not to be unfairly dismissed. Section 98 (which deals with the fairness of dismissals) provides: “98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— ... (b) relates to the conduct of the employee; ... . (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."[116]There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, the Tribunal must then consider, without there being any burden of proof on either party, whether the respondent acted reasonably or unreasonably in dismissing for that reason.[117]The test in section 98(4) was further clarified by the Employment Appeal Tribunal in Iceland Frozen Foods Limited v Jones [1982] IRLR 439, as follows:(a) the starting point is always the words of Section 98(4) themselves;(b) in applying that subsection, the Tribunal must consider the reasonableness of the employer's conduct and not simply whether the Tribunal considers the dismissal to be fair;(c) in judging the reasonableness of the employer's conduct, the Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. There is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(d) the function of the Tribunal as an “industrial jury” is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.[118]The Tribunal must be satisfied that the procedure followed in relation to the claimant’s dismissal fell within the band of reasonable responses (Whitbread plc v Hall [2001] EWCA Civ 268). It should consider the process as a whole, including any appeal, when determining whether a dismissal was fair or unfair. In this case the claimant exercised her right of appeal against dismissal, so the appeal is part of the disciplinary process the fairness of which falls to be considered under section 98(4).[119]Although it is common for employment tribunals to refer to dismissals being ‘procedurally unfair’ or ‘substantively unfair’, the case law on section 98(4) makes clear that there is no division between procedural and substantive fairness. The Court of Appeal made this clear in Taylor v OCS Group 2006 ICR 1602, stating: ‘It may appear that we are suggesting that employment tribunals should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that section 98(4) requires the employment tribunal to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the employment tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.’ Thus, in the Court’s view, where an employee is dismissed, a tribunal might well decide that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as sufficient to dismiss the employee.[120]The Tribunal should take into account all the circumstances of the case in assessing the impact of a procedural defect. So, for example, in a case where the decision to dismiss was a borderline decision (as between dismissal and some other action) procedural defects may have more impact on the overall fairness of the decision. Not every procedural defect will render a dismissal unfair. For example, in D’Silva v Manchester Metropolitan University and ors EAT 0328/16 the EAT upheld an employment tribunal’s conclusion that a flaw in the disciplinary process that rendered it ‘not ideal’ did not render the dismissal unfair. The disciplinary panel that decided to dismiss for gross misconduct was chaired by a person who was already familiar with the employee and his previous actions. The claimant claimed unfair dismissal, arguing, among other things, that the panel chair’s involvement in the disciplinary procedure was unreasonable since she would have been biased against him. An employment tribunal rejected the claim, noting that although H was the sole decision-maker she had had input and advice from a colleague in respect of whom D had raised no objection. The tribunal was satisfied she had approached her task with proper professional detachment, and it pointed out that anyone who conducted the disciplinary hearing would have had to be fully aware of adverse comments made about the employee by a previous employment tribunal. The tribunal also took into account that it was not a ‘borderline’ case. It concluded that the misconduct was serious and that, while the University’s treatment of the claimant’s objection to the panel chair was not ideal, it did not render the dismissal unfair. The EAT dismissed D’s appeal.[121]It is therefore important for the Tribunal to look at procedural flaws in context and to consider their implications for the overall reasonableness of the employer’s decision to dismiss. In Sharkey v Lloyds Bank PLC EAT 005/15 Langstaff P observed that it will almost inevitably be the case that in any alleged unfair dismissal a claimant will be able to identify a flaw, small or large, in the employer’s process, and that it is therefore for the tribunal to evaluate whether that defect is so significant as to amount to unfairness. Langstaff P stated: ‘Procedure does not sit in a vacuum to be assessed separately. It is an integral part of the question whether there has been a reasonable investigation that substance and procedure run together.’ Furthermore, it is important for tribunals to consider the reasonableness of the whole procedure, including the decision to dismiss, in the round. As the EAT held in USDAW v Burns EAT 0557/12, section 98(4) poses ‘one unitary question’ — whether the dismissal was fair or unfair having regard to the reason shown by the employer — and tribunals are required to answer it holistically. Thus, the tribunal must not treat the reasonableness of the decision to dismiss and the reasonableness of the procedure as if they are two separate questions, each of which must be answered in the employer’s favour before the dismissal can be considered fair. It is not, however, an error of law for a tribunal to deal with the substantive and procedural elements of the decision to dismiss separately, provided that its approach leads to an overall determination as to the fairness or unfairness of the dismissal.[122]In all aspects of the case, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[123]In this case Mr Fernando decided to summarily dismiss the claimant for misconduct that he had decided constituted “gross misconduct” in terms of the claimant’s contract of employment. Whether his decisions on those two matters were reasonable or unreasonable is potentially part of our review of the fairness of the dismissal. However, we note that there is no separate claim for wrongful dismissal (notice pay) in this case so it is not necessary for us to decide specifically whether the employer was entitled to dismiss without the contractual notice to which the claimant was otherwise entitled. (3) Direct race discrimination[124]Section 39(2) of the Equality Act 2010 places a duty on an employer not to discriminate against an employee by, among other things, dismissing the employee. Dismissal is, potentially, “less favourable treatment” for the purposes of section 13, which deals with direct discrimination relating to a protected characteristic.[125]Section 13 of the Equality Act 2010 (so far as material) provides: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ... (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B."[126]In this case the relevant protected characteristic is race. The claimant comes from Ghana and identifies as a black African. The concept of less favourable treatment presumes an actual or hypothetical comparator who is not a black African but whose relevant circumstances are otherwise ‘the same, or not materially different” from those of the claimant (see section 23 of the Equality Act). The claimant relies on a hypothetical comparator.[127]When considering the reason for any less favourable treatment, the tribunal is considering the mental processes of the discriminator. However, discrimination may be, and often is, unconscious and unintended by the person alleged to have discriminated. Therefore, the Tribunal’s decision will often depend on what inference it is proper to draw from all the relevant surrounding circumstances. It is well established that an employer can be well meaning but still discriminate against an employee (Amnesty International v Ahmed (UKEAT 0447/08)).[128]Finally, section 136 of the Equality Act is an important part of the statutory framework for discrimination claims against an employer based on a contravention of any duty under the Act (including the duty on the employer under section 13 not to discriminate against an employee). Section 136 provides as follows: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[129]In section 136 “contravention of this Act” includes a contravention of section 13. The section applies to the claim for direct race discrimination in these proceedings. There are two stages to its application to a discrimination claim under section 13. The burden of proof is initially on the claimant to establish primary facts from which the tribunal ”could decide, in the absence of any other explanation” that the contravention took place (i.e. that the respondent treated the claimant less favourably in dismissing him than it would have treated a hypothetical comparator) This is stage 1. Any explanation of the relevant primary facts put forward by the respondent is not relevant at stage 1. If the claimant discharges that limited burden (and the Tribunal finds facts from which it could decide that a contravention of section 13 occurred) the burden of proof then shifts to the respondent. This is stage 2. The respondent must show that the contravention of section 13 (i.e. the direct discrimination) did not occur. Otherwise the Tribunal is required by section 136(1) to hold that the contravention occurred. Stage 2 is the point at which “any other explanation” (ie the respondent’s case on the merits of the direct discrimination claim) becomes relevant.[130]Guidelines on the application of the burden of proof provisions are set out in Igen Ltd (Formerly Leeds Career Guidance) and Oth v Wong [2005] ICR 931. The EAT has recently confirmed its importance (Field v Pye & Co [2022] EAT 68). Section 136 is often especially relevant in direct discrimination cases, where claimants may simply not have access to the evidence that would fully prove an act of discrimination.[131]However, the rule in section 136 need not be applied in “an overly mechanistic or schematic way’ in all cases (Khan and anor v Home Office 2008 EWCA Civ 578, CA). The case law on section 136 shows that there are situations where the application of section 136 is unnecessary or inappropriate. One example is where positive findings of fact the Tribunal can make on the evidence (without reference to the rule), or the existence of agreed facts, mean there is no room for its application.
Conclusions
[132]As with our findings of fact, we have considered all the evidence and submissions from the parties in reaching our conclusions. The submissions from each party were relatively brief and did not fully address all the individual issues in this case. But the claimant and Mr Fernando did, over the hearing taken as a whole, clarify their respective cases. In our view that was a sufficient basis for us to reach conclusions on the Issues. In these Reasons we deal with the pay-related claims first, before turning to unfair dismissal and direct race discrimination. Time limits (Issue 1)[133]For reasons already explained the only claim in these proceedings affected by the time limits for bringing ET claims is the claim for unauthorised deduction from wages. “1.2.1 was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made? 1.2.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?”[134]The questions posed by these two Issues are related, but need to be considered in order. The first question is whether the claim was made within the permitted period. The oral evidence was somewhat muddled, but it emerged that the claim relates to the last 11 days of June 2022, following the acquisition of the business (and its staff, under a TUPE transfer) by the respondent. We have found that the claimant was paid on 8 July 2022 by his previous employer for work done on 1 to 19 June 2022. He should have been paid by the respondent for the following 11 days on the same day, the last weekday in July before 10 July, which was a Sunday.[135]So the relevant date for the wages claim, for the purposes of section 23(2)(a), was 8 July 2022. That date was around 6 -7 months before the cut-off date of 25 January 2024 identified in Issue 1.1. It follows that our answer to Issue 1.2.1 is “no”.[136]As for Issue 1.2.2, there was a single failure to pay the claimant for the period from 20 to 30 June 2022 which should have been paid on 8 July 2022. There was no series of deductions (ie failures to pay wages): the failure in question was a one-off error on the part of the respondent. “1.2.3 If not, was it reasonably practicable for the claim to have been made to the Tribunal within the time limit? 1.2.4 If it was not reasonably practicable for the claim to have been made to the Tribunal within the time limit, was it made within a reasonable period?"[137]The parties did not address these two Issues in their submissions. However, as they go to the Tribunal’s jurisdiction we have considered them in the light of the evidence we have. We must consider Issues 1.2.3 and 1.2.4 in the context of a claim that was plainly not made in time. The starting point is always that the time limits should be complied with and that any extension needs to be justified on the facts in applying the statutory test.[138]We have, however, concluded that the answer to Issue 1.2.3 is “no”. It was not reasonably practicable for the claimant to make the claim within the time limit. We reach this conclusion for the following reasons.[139]We are unable to find that in the period permitted for wages claims (3 months plus Early Conciliation extension from the date the wages should have been paid) the claimant was aware of the fact he had a potential claim for non-payment of wages. The claimant freely accepted that he was not that good at reading and understanding formal documents and keeping track of emails and attachments. We accept his evidence about this, which was not contradicted by the respondent. He was paid for part of June 2022 on 8 July 2022. It is unlikely that he will have realised at the time that he should have had two payments and that he had simply not been paid at all for the last 11 days of the month. He is very unlikely to have understood the consequences of a change in his formal employer, given that it did not immediately alter his employment. If he had in fact realised the serious error made by the respondent in not paying him for the last 11 days of June, it is more than likely that he would have asked Mr Fernando what was going on. The fact he did not do that supports our view that he was unaware at the time of the error.[140]We would expect the claimant to have received a payslip from his previous employer (although we had no details about this), but it is quite possible that he never read it or spotted the shortfall in hours. Many employees fail to examine their payslips. It is also perfectly possible that he never noticed that the amount of the wages paid into his account on 8 July was less than he might have expected for a full month. Again, many employees do not check this regularly and assume things carry on as normal. But even if aware that the sum paid was lower than expected he would be unlikely to know that there should have been two payments of wages for June 2022.[141]The claimant was a relatively low-paid employee with limited resources. He had no knowledge or experience of legal matters or of employment proceedings. There was no suggestion from the respondent to the contrary. It is more likely than not that the claimant, even if he was aware of a possible shortfall in pay or hours in his June payslip, would not have been aware of what he could do about it in terms of making a wages claim to the tribunal.[142]For those reasons it was not reasonably practicable for the claimant to bring his wages claim in time. That means we must then answer Issue 1.2.3 - was the claim brought within a reasonable period? We have concluded that it was, for the following reasons.[143]The factors described above would have continued to be operative for some time after the end of the permitted period for making the claim. At some point the claimant must have realised that there had been a serious mistake in his June 2022 pay. We cannot be sure when that realisation dawned on him, but we consider it more likely than not that it was far nearer to March/April 2023 than July 2022. The sum involved was not trivial and we have no doubt that he would have raised the matter with his employer once aware of it. He refers to mentioning pay issues to Mr Fernando in his email of 4 or 5 April 2023 (attachment 05 in the bundle) This means in our view that it was reasonable for the claimant not to have obtained legal advice or taken other legal enforcement action before the disciplinary process against him was under way.[144]A payment of wages for June 2022 was eventually made by the respondent on 18 April 2023. This was the same day as the disciplinary hearing and before the dismissal letter was sent to the claimant. Something must have triggered that payment. We do not know exactly what that was, but it might well have been something the claimant or the union representative had said to Mr Fernando. At one point the claimant thought that the fact he had mentioned his pay to Mr Fernando was a possible reason for the fact he was being disciplined. However, it was certainly the case that it was not until the hearing before us that the claimant appeared to fully understand the payment that had been made and what it was for.[145]At the time the claimant was eventually credited with some of his back pay, the disciplinary process was reaching its conclusion, the claimant was under suspension and he was facing a significant number of misconduct allegations, including some serious and unpleasant ones. This probably explains why he did not fully register the fact of the payment or what it was for. He had short notice of the hearing and of the many allegations against him and had been seeking help from his union, UNITE. It is likely, and reasonable, that in these circumstances his whole focus at the time would have been on the misconduct allegations against him, rather than matters to do with his historic pay.[146]Given the claimant’s belief that the allegations against him were contrived and some of the evidence fabricated, he must have realised that there was a prospect of dismissal. We would expect him to have discussed his options with the union representative. We were not told about what happened when the claimant received his dismissal letter, but it is likely his union representative will have told him about the need to apply to ACAS before issuing ET proceedings. He certainly acted quickly after his disciplinary hearing. He initiated the Early Conciliation process with ACAS the day after receiving his dismissal letter, on 24 April 2023. He must have been aware by then he could make claims for unfair dismissal and discrimination relating to his dismissal and, potentially, for outstanding pay matters. His union representative is likely to have discussed these things with him in the few days between his suspension and the disciplinary hearing. It is certainly more likely than not that any such discussion would have covered any historic pay issues.[147]We consider in the light of the above factors that until some point in April 2022 (when he was being actively supported by his Union) the claimant was not equipped with the knowledge(a) that he had a potential wages claim (even without hard evidence of the hours worked in June 2022) and(b) of how to pursue such a claim. There was nothing unreasonable about that.[148]The claimant did not get his EC Certificate until 5 June, having been sent his appeal outcome letter on 2 June. He would not have been able to complete the ET1 form on his own and he needed some advice and assistance. He told us he went to the Citizen’s Advice Bureau for help after his dismissal, which was a reasonable and sensible thing to do. His ET1 form was presented on 5 July.[149]In all these circumstances we do consider that the claim was made within a reasonable period. This means that we have jurisdiction over the claim. It occurred to us after the hearing that Mr Fernando’s acceptance, in April 2023, that the claimant had not been paid for June 2022 and his payment on 18 April of back pay for June 2022 might affect the time limits issues. Mr Fernando had paid wages for June 2022 (as he calculated them) on 18 April but not, according to our findings, the full amount. He had in effect conceded a significant proportion of the claim shortly before the EC process was initiated and before the ET1 form was presented. Mr Fernando accepted before us that a mistake had been made. There was clearly some sort of administrative muddle in late June 2002 shortly after the respondent took over the business. It appeared to us potentially arguable that a deduction was (on the claimant’s case) made from the payment of wages on 18 April 2023 and that this might start time running afresh. However, this matter was not raised with the parties during the hearing so we have not considered it further and have determined the time limits Issues on the basis that the operative date for payment of the wages was 8 July 2022. Pay claims (Issues 4 and 5) Unauthorised deductions from wages “5.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted? 5.2 The claimant asserts that he was due one week’s unpaid wages from June 2022. The respondent asserts that this was paid in February 2023 together with a payslip which explains the calculation.”[150]We refer to our findings of fact in relation to the wages claim. It follows from those findings that the answer to the first part of Issue 5.1 is “yes” - the respondent failed to pay any wages due to the claimant for the last 11 days in June 2022. Mr Fernando accepted that he should have been paid by the respondent for the period from 20 to 30 June at about the same time he was paid by his previous employer for the earlier part of June, i.e. on 8 July 2022.[151]As for the second part of Issue 5.1, we have found that the claimant worked for 115.5 hours over that period but was paid for 83.5 hours, a shortfall of 32 hours. At £9.85 an hour this gives a gross sum that was “deducted” (i.e not paid) of £1137.678.[152]On 18 April 2023 the respondent paid ££657.88 into the claimant’s bank account, although the claimant did not realise until much later that this had happened. The represented the sum Mr Fernando considered was due from the respondent to Mr Tagoe in respect of his June 2022 pay, after deduction of income tax at 20%. Clearly, the respondent is entitled to set off this sum against what was owed from July 2022 in respect of the claimant’s June pay. Holiday pay “4.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended? 4.2 The claimant asserts that he was due some historical holiday pay from 2021. The respondent asserts this was paid in February 2023 together with a payslip which explains the calculation.”[153]The respondent accepted the claimant was owed holiday pay for 2022 and eventually paid the claimant £1413.96 on January 2024. This was less than the sum mentioned in the claimant’s ET1 form but we understood the claimant to accept the figure put forward by the respondent in their calculation of the holiday pay he was owed. In any event, we have not identified any evidence to suggest that the claimant was paid the wrong amount for the period between 20 June and 31 December 2022.[154]The calculation does not cover the period from 1 January to 19 June 2022. The claimant did not advance a positive case that he was owed holiday pay for that period. Nor do we have evidence about his entitlements or holiday taken over this period. So we can only deal with the period from 20 June.[155]The claim for holiday pay has not been formally withdrawn or settled. In these circumstances we conclude that the claimant was owed holiday pay when he was dismissed in the sum of £1413.96. The claimant has subsequently been paid that sum by the respondent and ,s therefore entitled to set off the amount paid against the amount due. Unfair Dismissal (Issue 2) “2.2 What was the reason for dismissal? The respondent asserts that it was a reason related to conduct which is a potentially fair reason for dismissal under s. 98(2) of the Employment Rights Act 1996.”[156]It is common ground that the respondent summarily dismissed the claimant on 24 April 2023. We considered carefully what was the reason for the dismissal. The respondent relies on the documentation in their bundle evidencing the disciplinary process and the matters relied on by Mr Fernando in deciding to dismiss the claimant and by Mr Balachandran in rejecting his appeal. Their position is that the reason was misconduct and nothing else. The claimant has always maintained that the disciplinary process resulting in dismissal was a “stitch up” because for some reason Mr Fernando wanted to get rid of him. He says that reason was, one way or another, linked to his race. He disputes the truth or accuracy of all the findings of misconduct made by Mr Fernando.[157]We were certainly struck by the speed with which numerous allegations of incidents of misconduct over a short period of a few days in March 2022 were identified, investigated and then raised in the formal disciplinary process against a long standing employee. We considered that to be very unusual, and potentially something capable of supporting the claimant’s view that he was dismissed because Mr Fernando no longer wanted him as an employee. However, we do not view this consideration as enough to justify a conclusion that the reason for dismissal was not misconduct or that the whole process was bogus. That is because (a) on the face of the documents relating to the disciplinary process, various allegations of misconduct were made and most (but not all) were upheld or substantially upheld after consideration of the evidence available to Mr Fernando. His findings were upheld on appeal. We did not identify anything in the evidence before us (beyond the claimant’s bare assertions about what he thought was the real reason for dismissal) that pointed to any conclusion other than that the reason for dismissal was misconduct. The allegations he made about the whole process being bogus were simply not, in our view, borne out by the evidence taken as a whole. We consider it probable that Mr Mr Fernando must have thought from the outset that the claimant might end up being dismissed. But we conclude, on the balance of probabilities, that the reason for dismissal was a reason related to the claimant’s conduct. Whether the dismissal was fair is a different matter, and this we deal with below.[158]We are also conscious that (for reasons set out below) we have upheld the claim for direct race discrimination. However, we do not see that, in the circumstances of this case, as inconsistent with our view on Issue 2.2. The dismissal was in our view unfair for various reasons set out below. The reasons why there were flaws in the investigation and disciplinary process and the decisions made in that process are unexplained. In applying section 136 of the Equality Act we also conclude that it was tainted by direct race discrimination. We do not see that conclusion as a compelling reason to decide that the reason for dismissal was not a reason related to conduct. “2.3 Did the respondent hold a genuine belief in the claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances?”(i) genuine belief? 109. As for the first of the three elements in Issue 2,3, we have concluded that the respondent did hold a genuine belief in the misconduct in question. That is the misconduct which Mr Fernando decided was established by the disciplinary process leading to dismissal. We reach this conclusion for substantially the same reasons as those we have given for our decision on Issue 2.2. We have documentary evidence about the disciplinary process and appeal which supports a finding in favour of the respondent on this element of Issue 2.3. This is not contradicted by specific evidence to support the claimant’s assertions that the disciplinary process was bogus and always designed to secure the claimant’s dismissal without any chance of a different outcome. We certainly had some misgivings as to Mr Fernando’s intentions in amassing so many misconduct allegations over a short time. It may be that he had found some of the initial serious allegations shocking and wanted to establish a compelling case against the claimant. We address the reasonableness of his investigation below. But we concluded that when he decided to dismiss, Mr Fernando did have a genuine belief in the misconduct he found proved. We considered whether the serious allegations he decided had not been substantiated or fully substantiated should have given him reason to pause before concluding the other allegations were substantiated. He does not appear to have applied his mind to that possibility. In any event, we concluded that the point did not undermine the genuineness of his belief in the misconduct.(ii) reasonable grounds for the belief?
Introduction
[159]We are required by the law not to substitute our own views as to whether the claimant committed each of the acts of misconduct in question. Rather, we must consider only whether the grounds on which the belief was formed (i.e. the evidential basis and reasoning relied on by Mr Fernando in making his findings) were reasonable. In other words, were they within the band of reasonable responses open to an employer in the circumstances when Mr Fernando made his decisions and when the appeal manager rejected the claimant’s appeal.[160]We have found this a difficult Issue to answer in detail. We were conscious we may not have seen or been referred specifically to all the evidence relied on by Mr Fernando. For example, he appears to have seen CCTV evidence regarding the alleged thefts which had been sent to the Tribunal but the attachments sent to the Tribunal could not be opened. There is also not much detail given in the dismissal letter to explain Mr Fernando’s views on the quality of the written evidence he was relying on to uphold particular factual allegations and/or why he did not accept the claimant’s assertions of fact. If he had not in fact considered the quality of the evidence in reaching a considered view on the facts, that would potentially undermine the basis for his decisions on the facts. But we are unable to reach any conclusions on this point as we have insufficient information about his thought processes. Allegations described as “theft”[161]In relation to the allegations relating to taking or giving away food and drink items, the claimant did not appear to dispute the basic facts of what happened in some of the incidents, which we understood were been captured on CCTV. He did deny some of the factual allegations, such as stealing a reusable cup, which he said was damaged and unsaleable. He did question the values placed on the items. We note that the marginal cost to the respondent of the items in question will have been a fraction of their retail value and that items which could not be sold to or used by customers would have no value. But the claimant’s main complaint was that(a) his actions were in any event innocent of misconduct in that what he had done had been accepted common practice when the outlet was a Subway for the 6 years or so he had worked there, and(b) that he was simply unaware that Mr Fernando had decided to change the respondent’s policies on these matters when he made his oral announcement to staff on 16 March. That was, he said, because he was off sick and not at work when the change in policy was announced to staff. Nobody told him about the change in policy and Mr Fernando’s oral announcement was not followed up with anything written, such as reminders for staff or notices.[162]At the disciplinary hearing Mr Fernando does not appear to have applied his mind at all to the question whether the claimant had been present at the staff meeting on 16 March.The outcome letter mentions the announcement and appears to assume the claimant heard it. The claimant had previously responded to the invitation to comment on some matters raised in the investigation by suggesting Mr Fernando could have raised his concerns regarding “free food” rather than suspend him. It appears to us likely that at that point the claimant was not aware of the announcement at the staff meeting. It may be that even at the disciplinary hearing the claimant (and perhaps his union representative) were unaware of the significance of the point in relation to the relevant allegations. We also note that there a fairly obvious question that arises if the claimant had been present for the announcement of the new policy and had heard and understood it: why would he then repeatedly breach the new protocol immediately over the next few days in view of the CCTV cameras. That would have been a foolish thing to do.[163]The email from the claimant initiating his appeal refers to the fact he was not told about the change to “food Protocol”. This was discussed at the appeal hearing and the appeal outcome letter addresses the point, concluding that he was present. We note the letter inviting the claimant to the appeal hearing mentions that the hearing manager could “if required investigate [the grounds of appeal] further”. The appeal decision letter refers to 4 members of staff who stated that he was present. This must have persuaded Mr Balachandran that the ground of appeal failed. However we have not seen any written statements by the staff in question and it does not appear that anything in writing was ever supplied to the claimant for comment. It appears from the letter that the appeal manager disbelieved the claimant on a new question of fact without putting the new evidence that he or Mr Fernando had obtained to the claimant. Nor do we know if any other members of staff were approached or exactly what was said by those approached and what they were asked. It is common ground that the claimant was at work at some point during the morning of 16 March 2023, so the narrow question was only whether he was there earlier, when the announcement was made.[164]In all these circumstances our decision is that that the findings of misconduct in relation to the allegations regarding “theft” of food and drink items were not based on reasonable grounds. This is because the key factual question (whether the claimant was present for the announcement of a new policy) was not properly dealt with at the disciplinary hearing. This is also tied in with what we see as failures in the investigation, which ought to have identified the factual issue that became important later and all the relevant evidence from those present. The key factual question should then have been considered and resolved at the disciplinary hearing. We do not see the review of the disciplinary decision by the appeal manager, following the appeal hearing where the question was first discussed in any depth, as having cured that oversight.[165]The allegation of theft of a reusable cup was upheld on the basis there was no evidence that it was damaged property, and that the claimant should not have taken it without authorisation and should have followed the correct procedure. That might suggest that it was the failure to follow the correct procedure that made the respondent see the behaviour as theft (rather than applying the usual legal meaning of the term, involving dishonesty). It was not clear to us whether this alleged misconduct would have been within the sort of thing that had been tolerated over the previous six years or so when the food outlet was a Subway. Perhaps not if there was an established procedure for damaged goods. But the decision letter refers to there being no evidence the cup was damaged. There was evidence from the claimant however, and no direct evidence that it was undamaged. Mr Fernando appeared to be saying indirectly that he did not believe the claimant or that his evidence was not enough, but without giving any reasons. We do not regard the evidence available to him as providing reasonable grounds for regarding the act as simply stealing a cup to the (retail) value of £2.75. If it is possible to read the decision letter as finding that it was the failure to follow the procedure that was the essence of the misconduct, then to that extent (assuming the claimant was or should have been aware of the procedure) there might or might not have been reasonable grounds for such a finding. But we do not have evidence to show that there were in fact reasonable grounds for such a finding.[166]More generally, we do not consider there to have been reasonable grounds for Mr Fernando to regard as “misconduct” breaches of his new policy that were carried out over a very short period or two or three days after the policy was changed. That is our view even if all the conduct in question had been properly proved and the claimant had been informed (once) of the new policy. The claimant had worked in the Subway outlet for over 6 years and had worked his way up to becoming the manager. It was inevitable that a culture change of the kind the respondent had decided upon might take some bedding in for long-standing staff. There was no follow-up from the announcement, such as posting reminder notices or any other confirmation in writing of the new rules. Not everyone will take in all that is said at an oral meeting. Management intervention and guidance, and reminders or informal warnings, would in our view be needed before the sorts of behaviour in question could reasonably be labelled as misconduct worthy of formal disciplinary action. Staff needed the chance to understand and apply the new policy before it was enforced strictly.[167]It is not clear to us why Mr Fernando jumped straight to investigation and disciplinary action without engaging with the claimant about the new policy and explaining that his conduct was now contrary to it. This was not in our view a reasonable thing for an employer to do. We note in this regard that there was one incident among the allegations that was witnessed by Mr Fernando. He appears to have told the claimant that what he had done (giving out a free coffee) was wrong. But there is nothing in the evidence to suggest that this was the sort of engagement we have referred to (including a clear reference to or explanation of the new policy). Instead of doing that and/or treating the matter as closed, Mr Fernando simply included the incident in the list of misconduct allegations being pursued against the claimant.[168]Even if we are wrong about the lack of reasonable grounds for categorising the conduct in question as misconduct, there were in our view no reasonable grounds for considering it to be serious or gross misconduct. Our reasons for saying that are the same as those for saying it was unreasonable to regard it as misconduct. Allegations described as sexual harassment[169]As for the allegation regarding improper touching of a female manager, we accept that there were reasonable grounds for concluding that the claimant had briefly touched the person concerned on the shoulder. We viewed the CCTV recording of the incident. We were told by Mr Fernando that it captured the whole thing. However what we saw showed a fleeting touch on the shoulder as the claimant passed her that could not reasonably be viewed as anything more than a friendly gesture. For this reason we prefer the claimant’s description of it as a friendly contact, rather than one with more improper connotations, such as a “sexual” motive. He should not of course have touched a colleague without consent, but we were unable to see how the footage could be seen as capturing a serious act of misconduct described in the decision letter as holding her from behind and labelled as “sexual harassment”. There were certainly no implications from what we saw of any sexual or other inappropriate motive or pressure placed on the recipient of the touch. We also consider that the footage was simply not consistent with the description of the claimant’s behaviour in the manager’s witness statement.[170]The dismissal decision letter suggests that only the incident captured on the CCTV was upheld. We note that the appeal invitation letter lists the reasons for dismissal and suggests that the full allegation (including the claimant pressing his body against the complainant) was upheld, which was not what happened in the footage we were shown. If (contrary to our reading of the decision letter) Mr Fernando did uphold the allegation as sexual harassment or anything of a similarly serious nature, there were no reasonable grounds for that, given what was captured on the CCTV footage. Allegations described as breach of food safety law[171]As for the allegations regarding health and safety records on 18 and 19 March we accept that there was some credible evidence that was relied on by Mr Fernando to decide that most of the alleged conduct happened. Against that there were the claimant’s denials that he had done some of the things and that he had not really done anything wrong. In those circumstances it is not open to us to reach our own view on the underlying facts. Whether it was reasonable for Mr Fernando to regard them as misconduct, and as serious misconduct justifying dismissal, is a different question.[172]We had considerable doubts as to whether the conduct could reasonably be regarded as misconduct given that the claimant was still undergoing training in relation to the requirements of working in a Greggs outlet (which we understood to be very different from working in a Subway in terms of the health and safety concerns and protocols) and was still under supervision and could be corrected. However, we have concluded that on the face of the evidence there were reasonable grounds to conclude that the conduct in question was “misconduct” (whether or not we would have reached the same view, were we the decision maker).[173]We take a different view as to whether, assuming the conduct was reasonably regarded by Mr Fernando as misconduct, it could reasonably be seen as serious misconduct of a kind justifying dismissal or as gross misconduct justifying summary dismissal. We do not consider there were reasonable grounds for either of those conclusions on the part of Mr Fernando. Either management or training advice could have been given, perhaps with an informal warning as to the consequence of further breaches or a sanction short of dismissal (such as a written warning or final warning) imposed.[174]As for the allegation of instructing a colleague to use out of date lettuce in preparing a sandwich, we do not consider that there were reasonable grounds for the decision upholding the allegation. It is clear from the brief note of what was said in the disciplinary meeting that the claimant was not only positively denying any wrongdoing, but he had also offered a photograph which, he said, showed that on the day in question (19 March) the lettuce was within the use-by date. The decision letter refers to his denial but not the photograph. The reason given in the letter for not believing him was a reference to the incident in a Gregg’s manager’s witness statement which refers to the incident as having been reported to her by the sandwich maker. But that statement gives no details or dates, does not refer to the author having checked the wrapper and appears to be based on hearsay from the sandwich-maker. As such, we were unable to see how it could be reasonable to rely on it as firmly corroborating the sandwich-maker's assertions in the face of the claimant’s evidence of his recollection as to the facts and his photograph. If Mr Fernando thought the photograph was, in effect, fabricated or bogus he should have said so and why he thought that. If he did not think that, then he should have taken it into account in deciding what happened and then mention that he had done so in the letter. Allegations described as “serious misuse organisation’s name”[175]As for the allegations relating to drugs, we were never clear as to why the more serious allegations were made and pursued, as the claimant was bound to deny them and Mr Fernando decided that the evidence did not substantiate them.[176]Mr Fernando upheld part of one allegation (offering customers drugs with their purchases), saying in effect that it was reasonable for him to believe that the claimant had “discussed drugs with customers and acted irresponsibly in your capacity as a store manager and bringing down the reputation of the organisation”. The letter does not spell out what that behaviour consisted of, although it does not appear to consist of offering drugs. The sentence that I have quoted follows immediately after the description of the claimant’s oral evidence as to what he accepted he did (see paragraph 187 below). There is then a simple reference to a joint statement as evidence that the makers “had seen you do this”, whatever the “this” was.[177]The claimant had accepted that he had joked with customers about a nickname (“ganja man”) he had been given but denied he had joked about products containing ganja or worse. We gathered from other things he said to us that other staff also referred to him as “rastaman” (due to his obvious Rastafarian appearance). He also said he had become aware that Greggs did not appreciate any drug references so had asked customers not to repeat the nickname. That would have been around the same time as the alleged misconduct. In any event, to the extent of what the claimant accepted, there were reasonable grounds for Mr Fernando to believe that he had carried out conduct of the admitted kind.[178]So far as the finding was that the claimant had actually “discussed drugs” with customers in an unacceptable way other than in ways the claimant admitted, no explanation or reasons for any such finding are stated in the letter. Nor is the actual behaviour in question identified, although it appears to be different from the actual allegation of offering drugs with purchases (as a joke, we understood rather than as a criminal offer to supply drugs). We do not consider that Mr Fernando had reasonable grounds for believing the claimant to have committed conduct of this kind. In the case of other allegations a conflict between the claimant’s evidence and the content of a witness statement was enough for Mr Fernando to not uphold the allegation. We do not know why he did not follow this approach in the case of the drugs allegation. If he considered the evidence and decided to disbelieve the claimant and find conduct proved, an explanation that he had done that and why was needed, however brief.[179]We have considered carefully whether it was reasonable for Mr Fernando to view the conduct he had reasonably identified as proved (the things the claimant accepted he had done) as misconduct at all. It appeared from the evidence that the jokes had been going on for some time, many initiated by customers, without anyone raising the matter with the claimant and clarifying that such behavior was regarded as unacceptable and could lead to disciplinary consequences if repeated. There was no specific rule breached by this conduct, as the respondent was relying on a broader ground along the lines of bringing their name into disrepute. In such circumstances the claimant had no reason to think that his joining in was a disciplinary matter. He might reasonably have thought this was banter and friendly interaction with customers, with a positive effect on the business. It is hard to see how he could be blamed for acts by customers. We can see good reasons for not regarding the claimant joining in with jokes from customers (and potentially racist jokes, perhaps) as misconduct on his part, at least until a manager had picked him up on this and told him not to do it and perhaps to encourage the customers to desist. We understand of course that Greggs and the respondent might reasonably regard this sort of conduct as not the sort of thing they want their staff to do or the image they wish to project to their customers. But until he was made aware of their views and wishes, we do not consider it reasonable to regard the conduct as misconduct in itself.[180]Also, the evidence was that one of the Greggs trainers had taken the matter up with the claimant at the time they saw behaviour they objected to. He accepted that he needed to change his conduct once he had been told that. In our view, it was then unreasonable to pursue the same matter as a disciplinary offence and treat the conduct as misconduct. It was not clear to us from the dismissal letter whether Mr Fernando decided the conduct in question had continued after this.[181]In any event, even if the conduct in question was reasonably categorised as misconduct, we do not consider that there were reasonable grounds to conclude that it was serious misconduct justifying dismissal or as gross misconduct justifying summary dismissal. The reasons are the same as those given in relation to whether the conduct was misconduct at all. In the circumstances either a management intervention to explain the position, or a disciplinary sanction short of dismissal, might have been reasonable responses by an employer. Final observations[182]It follows from the above conclusions that we do not consider that the findings of misconduct were all reached on reasonable grounds. Nor do we consider that the conclusion that the misconduct found was serious enough to warrant dismissal was reached on reasonable grounds. Mr Fernando clearly thought that all the allegations in question (other than those he did not uphold for lack of evidence) involved serious misconduct for which dismissal was a sanction reasonably open to him. That was in our view something for which he did not have reasonable grounds. This was a fatal flaw in the reasoning leading to the dismissal of the claimant, even apart from our conclusions below on the reasonableness of investigation and the fairness of procedure followed. Reasonable investigation?[183]The third element of Issue 2.3 is the reasonableness or otherwise of the investigation. We can only intervene if the investigation was outside the band of reasonable responses for an employer. We note that, as the wording of the Issue indicates, the standard to be applied depends on what was warranted in the circumstances, rather than an absolute standard to be applied to all cases equally.[184]The purpose of an investigation is to establish the facts so far as possible and what different people are saying about the matters being investigated. Someone then needs to decide if there is a case to answer and whether to pursue specific allegations in a formal disciplinary process. In the claimant’s case there were some serious allegations involved, including conduct that was potentially criminal conduct. All the allegations were viewed by Mr Fernando as gross misconduct offences from the outset. In our view the investigation needed to be carried out in a manner commensurate with the seriousness of the allegations, resulting in a clear description of the specific conduct alleged to constitute the misconduct, if any, that was supported by credible evidence. Further, the investigation should have aimed (as far as reasonable in the circumstances) to identify competing versions of the facts being put forward by different witnesses, to identify any issues raised by the employee in their “defence” and investigate those, and to record what happened in the investigation and what was said in any discussions with potential witnesses.[185]The purpose is not simply to generate a case against an accused person and a list of witness statements, but to investigate the facts. In our view a reasonable investigation in this case needed to engage to some extent with the quality and weight of the evidence on disputed matters of fact as well as identifying what was disputed. This would include, where relevant, identifying any significant inconsistencies between different witnesses or within the evidence of a single witness. We did not see any sign of this beyond the dropping of one allegation for which there was no real evidence. If this had all been done in the claimant’s case, it is likely that some of the allegations would have been dropped or narrowed before the disciplinary process began. He had to face a large number of allegations of gross misconduct at one time. It might be questionable whether that was a fair thing to do in one disciplinary process; but in any event only allegations which had been reasonably investigated and for which there was some credible evidence should have been taken forward into the disciplinary process.[186]We do not consider it unreasonable for Mr Fernando to have carried out the investigation himself. He was the senior manager and owner of the respondent’s business and he must have thought there was nobody else in the organisation who could have undertaken this role. We have no information as to whether or not anyone from Rontec or Greggs could have taken on what was going to be a challenging role over several days, at best. Paying a third party contractor to do it would have been expensive and the respondent was not a large employer.[187]As will become apparent when we address the procedure, we do not consider that Mr Fernando should have both acted as investigator and carried out the disciplinary hearing. As far as the investigation itself is concerned his position in the respondent’s organisation was relevant. He was the owner and manager of the respondent’s business and was the claimant’s manager. He had decided to suspend the claimant following information about alleged serious misconduct. He was also a witness. So it was especially important for him to carry out a proper investigation dispassionately, and to avoid any bias or perception of bias or of prejudging things. It may be that, even with his HR support, Mr Fernando did not have the skills or experience to carry out an investigation properly. But that is not in our view a reason in this case to lower the standards we should apply in determining whether the investigation was a reasonable investigation or within the band of reasonable responses.[188]It was clear to us from the investigation report and the statements in the bundle that Mr Fernando became invested in establishing a case against the claimant in relation to multiple allegations over a short period of time. He may have had some reasons as a manager for doing this, as some of the initial allegations were serious and he must have thought from the outset that there was a clear case for the claimant to answer on them. But we consider that it is more likely than not that this led to aspects of the investigation not being as thorough and fair as it should have been. He appears to have been ready to add new incidents mentioned to him by others to his list of “offences” but without investigating them further. In the circumstances of the case (numerous allegations emerging of serious misconduct over a very few days) it was easy for an investigator to lose track of what he was or was not investigating, and whether lines of enquiry had been identified and followed up. New things were likely to emerge, but these too need to be investigated before they were included in a list of formal misconduct allegations.[189]Unfortunately, some of what happened in Mr Fernando’s investigation fell short of a reasonable standard, as we describe in the next few paragraphs.[190]The bundle contains written statements from some members of the respondent’s staff or staff of Greggs that were in effect the case against the claimant at his disciplinary hearing and were relied on by Mr Fernando in reaching his findings. But there are no records that we have seen of the conversations that he must have had (or should have had) with the makers of those statements or with other members of staff, who may well have said things that were relevant to the allegations but not recorded in the written statements. It is perfectly possible that some of them will have said things that contradicted the evidence recorded in those statements. We simply do not know as the bundle does not reveal what they said or what they were asked. In relation to the makers of the written statements, Mr Fernando appeared to regard it as sufficient to obtain a written statement describing alleged acts of misconduct and leave it at that. It was our view a serious failure in the investigation process not to record the discussions that must have preceded the production of the written statements.[191]We note that it is often not practicable for an accused employee to be able to approach colleagues or ask them to give evidence on his or her behalf. Indeed, in this case the claimant was instructed by Mr Fernando not to approach other staff members without his permission. There are all sorts of reasons why colleagues may be reluctant to get involved in supporting someone undergoing a disciplinary process, even if they have relevant evidence to give. It follows that it is important for the investigator to approach all potential witnesses to get a full picture of the facts, including in particular the facts that are likely to be disputed. If Mr Fernando did not approach all potential witnesses for their information, then that would be a factor against regarding the investigation as reasonable. If he did do that, then the conversations should have been properly recorded. Either way we consider the investigation to have been deficient. 192. .In our view the investigation was somewhat rushed given the large number of allegations involved. We accept of course that there is good reason not to delay the investigation of misconduct unnecessarily. But the allegations made were many and varied and some were very serious indeed. Enough time needed to be taken to ensure they had all been properly investigated so that the investigator had a reasonable chance of eliciting all relevant information that was reasonably available to him. Taking more time to make sure everything had been fully investigated and that the allegations were based on credible evidence would have probably avoided some of the problems that we have identified.[193]Assessing whether there was a case to answer should have included, where relevant, considering the motives or accuracy of any witness whose evidence was contradicted by others or was inherently unconvincing. In particular, the evidence for the very serious allegations relating to drugs (and for a period during the investigation) to making comments about rape was not on any view convincing, certainly without some plausible corroboration. The records do not suggest that during the investigation Mr Fernando considered such matters or whether it was right to rely on evidence from those who gave the evidence in question.[194]The case against the claimant on the “theft” allegations largely depended on him being aware of the new policy announced to staff on the morning of 16 March 2022. There is no record that we identified in the documents to suggest that Mr Fernando ever investigated the question whether the claimant had been present when he announced the new policy on taking or giving away food and drink items. He may have simply assumed that the claimant was present, but it was in our view a serious error not to establish what the claimant had to say about this on the facts (that he was at home unwell until he came into work later on 16 March 2023) and then to explore with all potential witnesses if that was true or not. There would presumably have been CCTV records that might have made the position clear or perhaps other written records that might be relevant. And, importantly, the answers given by potential witnesses were likely to be more reliable if the question had been asked nearer to 16 March, rather than after the appeal hearing on 30 May 2023.[195]Nor does it appear that Mr Fernando ever investigated the “custom and practice” relied on by the claimant later in the process, in terms of what had been allowed or tolerated in terms of taking or giving away food and drink when the claimant’s previous employer (“Rontec”) operated the food outlet as a Subway. It appears that these things were only really explored in discussions during the appeal hearing, when Mr Balachandran was stating his own direct knowledge of things as they stood when he was involved in managing the business under the claimant’s previous employer. That was too late in the overall process for such discussions to take place for the first time.[196]It is not clear to us from the documents in the bundle that that the “sexual harassment” allegations were fully investigated. It appears from the investigation report that Mr Fernando was simply relying on and referring to the written statement from the complainant and something from Sapu. There is no reference to the actual content of the CCTV footage (as shown to us) and it would have been far better if the alleged conduct was identified more clearly. If Mr Fernando had considered whether the CCTV footage supported the content of the witness statements, he might well not have ended up labelling it as “sexual harassment”. That was a term which the claimant found especially upsetting and was not based on reasonable grounds. We are also unable to tell what discussions Mr Fernando had with other staff about what they did or did not see on the days in question, as nothing is recorded.[197]The investigation report is very limited in its description of the details of what became numerous allegations relating to taking or giving away food and drink items. Very few particulars are given. We conclude on the basis of the report that the investigation of the relevant allegations was not as thorough as it should have been. In particular:• there is no reference to the allegation of stealing a reusable cup, which was perhaps the most serious allegation. We infer that it was not investigated. Nor was it referred to in the list of questions sent to the claimant for his comments. The claimant later said in the disciplinary process that this was a damaged item and unsaleable. That allegation should have been identified and investigated properly and identified in the report with the relevant evidence, before being included in the list of allegations to be considered in the disciplinary hearing. A failure to establish the claimant’s position and whether there was evidence to support or contradict it was a serious mistake.• There is a reference to the allegation of instructing a sandwich-maker to use out of date lettuce. But the investigation had not identified the claimant’s factual position on the allegation or the photograph which he later relied on as demonstrating that the lettuce was not out of date. This allegation was not covered by any of the questions in the list sent to the claimant. This allegation too should have been investigated and put to the claimant before being pursued in disciplinary proceedings. The failure to do so was a serious mistake.• An allegation regarding giving a customer a free coffee was disputed by the claimant later as having been part of an opening promotion. This ought to have been surfaced in interviewing the claimant and investigated so that the facts and surrounding evidence were clear at the disciplinary meeting.[198]Although it is not always necessary for the employee in question to be interviewed in relation to misconduct allegations, we consider that the claimant should have been interviewed in this case and asked about the things Mr Fernando thought he had found out from others. The claimant had been working for the business successfully for over 6 years and had been promoted to manager; he was then suddenly about to face numerous allegations, including some very serious allegations in relation to conduct over a very few days. In our view, fairness demanded that he should have reasonable notice of what was being alleged in enough detail to give an informed and considered response. One aim of such a meeting would be to establish any further lines of investigation revealed by the employee’s informed response. For example, where the response was to dispute whether particular conduct was “wrong” it would be important to explore the reasons being relied on for saying that it was or was not misconduct.[199]We accept, of course, that an employee may decline to be interviewed or to take up a reasonable opportunity to give their side of the story. In those situations, a lack of co-operation will make it hard for the employee to complain later about failures in an investigation. But that is not the case here. Mr Fernando considered that the claimant’s hostile response to being suspended meant that a face-to-face investigation meeting between himself and the claimant was not possible (whether in person or by video). It was regrettable, but perhaps understandable, that the claimant responded in a heated manner to being suddenly suspended for serious allegations of misconduct. Mr Fernando anticipated a difficult encounter at any investigation meeting. But time had passed, and in our view the claimant should have been offered a meeting (online if need be), at which others could have been present to support him and Mr Fernando. The fact Mr Fernando feared a difficult and hostile response to questions was not in our view a good enough reason for not arranging a meeting. If he felt he could not chair the meeting or ask the questions, he could have arranged for someone else appropriate to carry out that task, such as someone from his HR advisers. If the claimant had ended up behaving unacceptably at such a meeting it could have been terminated.[200]Instead, Mr Fernando decided to send a letter to the claimant inviting him to respond in writing to some 25 specific questions in fairly small type taking up a page and a half of A4 paper. Almost all of the questions were pointed and phrased in a way that suggested the claimant had committed multiple acts of misconduct on various dates, but without identifying in any detail exactly what he had been accused of. Most of the questions were not “open” questions designed to elicit the surrounding facts and to establish the claimant’s position on them.[201]We do not consider that sending such a letter would be a fair approach for any employee accused of numerous acts of misconduct, but this is especially so in the claimant’s case. That is because he is clearly not someone who is comfortable with formal documents and operating in writing, or with dealing with emails and technology. It was most unlikely that a detailed response indicating his views on the detailed facts would emerge. This meant, in our view, that decisions were made with regard to what allegations to pursue in the disciplinary process, without knowledge of the claimant’s case on the facts and without having given him a reasonable opportunity to explain it to Mr Fernando.[202]The letter sent to the claimant was dated 5 April 2023 (a Wednesday) and the claimant was asked to respond in writing on or before 12 April, one week later. Even if he had opened the email immediately, read it and understood what he needed to do, we do not regard one week as anywhere near sufficient to enable him to understand the questions, collect his thoughts, consider what to say and whether he could produce any evidence in support and then to articulate a proper written response putting forward his side of the story. The reality was that he would need time and help to do that, perhaps from his union or a CAB, and the chance of his obtaining that help in time to produce a considered response by 12 April was near zero. The claimant produced a short reply of sorts, which touched on one or two matters he has subsequently relied on in these proceedings. It was not an account of the facts.[203]For all the above reasons we conclude that the investigation in this case was not a reasonable investigation in all the circumstances. We do not regard the flaws as having been remedied by the subsequent disciplinary and appeal processes.[204]In this regard we also consider that the failures described in paragraphs 198 to 202 above alone are enough on their own to make the investigation “unreasonable” (ie outside the band of reasonable responses by an employer). This is because the many and varied misconduct allegations were very fact-dependent and the claimant was likely to vigorously dispute the facts and/or whether they constituted misconduct or gross misconduct. Without knowing what the claimant’s factual position was (or at least giving him a reasonable opportunity to put his side of the story) the investigator had no chance of establishing the facts fairly. In our view a written process was not a reasonable way of seeking to establish the claimant’s view of the facts. Knowledge of the claimant’s position would also be likely to raise matters that would need further investigation before any formal disciplinary process was initiated. That was certainly the case here as the claimant’s position on most of the allegations depended on things that could and should have been investigated further. “2.4 Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?”[205]Mr Fernando appears to have regarded all the incidents of misconduct (as he saw them) as serious enough to justify dismissal. He stated in the invitation letter to the disciplinary hearing that he considered the allegations to be of gross misconduct which could lead to summary dismissal. Doubtless he took account of all the misconduct he had found to be established, when he decided to dismiss.[206]We have already set out our conclusions as to whether there were reasonable grounds for the various findings of misconduct and for regarding them all as involving serious misconduct sufficient to justify dismissal.[207]We do not regard dismissal as a fair sanction for conduct if there were no reasonable grounds for regarding any acts in question as proved or for regarding proven acts as misconduct. But in this case we consider there is a serious question as to whether dismissal could be a fair sanction even if the findings as to what the claimant had done were all based on reasonable grounds. We shall consider each category of alleged misconduct in turn.[208]As for all the “theft” allegations involving taking or giving away food and drink items etc, these could only be regarded as misconduct if the claimant was aware of Mr Fernando’s new policy. There was no evidence that anyone informed him of the change in policy before he was suspended, otherwise than at the staff meeting on 16 March when Mr Fernando announced the new policy. We have already concluded that Mr Fernando did not have reasonable grounds for believing that the claimant was at that meeting (whether or not he ever applied his mind to this question of fact). But even if a finding that he was present was supported by the evidence, we would not consider dismissal to be a fair sanction. If management were concerned by what the claimant had been doing in plain sight (as captured by CCTV) and was now contrary to the new policy, we would have expected someone to take this up with the claimant at the time and give him guidance or instructions about the future. The new policy was a significant culture change for the claimant and it was in our view unfair and unreasonable simply to gather examples of alleged misconduct with a view to formal disciplinary action, rather than taking management action to attempt to address it. When it came to the decisions to be made after the disciplinary hearing, we conclude that dismissal was not a fair sanction in relation to these allegations. Guidance as to future conduct or a sanction short of dismissal (such as a written warning or a final written warning) would have been potentially reasonable responses. Dismissal was not a reasonable response.[209]The allegation of theft of a disposable cup was slightly different in character, but part of Mr Fernando’s reasoning was that if the claimant’s explanation was genuine, he should have gone through the correct procedures and failed to do so. Whether he was or should have been aware of the correct procedures was a moot point, but again we consider that management action (rather than a disciplinary process and sanction) would have been the fair course of action. But even if using disciplinary process and finding misconduct was a reasonable thing for the employer to do, we do not consider that dismissal was a fair sanction for it. Guidance for the future or a sanction short of dismissal (such as a written warning or a final written warning) would have been reasonable responses.[210]As for the allegation of sexual harassment, the finding of misconduct related to a specific incident which was captured on CCTV. As we have already stated, there were reasonable grounds for concluding that the claimant had very briefly touched the person concerned on the shoulder as he went past. But there were no reasonable grounds for treating the conduct as any more serious than that. We do not regard dismissal as a fair sanction for this act of misconduct. A sanction short of dismissal would have been within the band of reasonable responses.[211]Even If the conduct around references to ganja or “the ganja man” properly constituted misconduct, we do not regard dismissal to have been a fair sanction. In the circumstances, guidance for the future or a sanction short of dismissal would have been a reasonable response to the misconduct finding so far as based on reasonable grounds. There was a culture change attached to the outlet becoming a Greggs and we consider that management intervention (to tell the claimant of the new expectations and what was not tolerated) should have preceded any disciplinary proceedings.[212]In relation to the findings around misconduct in relation to health and safety we have already explained why, in our view, it was unreasonable for Mr Fernando to regard the incidents as serious. Even if there were reasonable grounds for the specific findings of fact, the claimant was undergoing supervised training. If he was not meeting expectations then the trainer could and should have taken action to ensure he complied with those expectations. If the incidents properly constituted misconduct we do not consider dismissal to have been a fair sanction. Guidance or a sanction short of dismissal would have been reasonable responses.[213]It follows from the above conclusions that we do not consider that dismissal was a fair sanction for any of the findings of misconduct.[214]We have also considered whether dismissal was a fair sanction for all the findings of misconduct, viewed collectively. That is a somewhat artificial question, given all the shortcomings in what happened that we have already described. However, we concluded that dismissal was not a fair sanction for all the misconduct found by Mr Fernando (so far as based on reasonable grounds). That view would also have been in line with the annex to the claimant’s contract of employment. If as we have decided only action short of dismissal could have been a reasonable response to any of the acts of misconduct involved, we do not see any reason for the outcome to be different if all the acts are taken together. The main reason for that is that the four categories of misconduct involved were so different (and the time frame in which the conduct was alleged to have taken place so short) that it would not in our view be fair to lump them together in terms of quantifying the level of wrongdoing. In addition, not all the findings of misconduct were based on reasonable grounds and it follows from our other conclusions that we do not regard dismissal to have been a fair sanction for those findings that were upheld on reasonable grounds, taken together. “2.5 Did the respondent adopt a fair procedure?”[215]It is somewhat artificial in this case to separate out the reasonableness of the investigation, the fairness of dismissal as a sanction and the fairness of the procedure, as they are all so intertwined. But we will addressed the procedure separately. We see Issue 2.5 as relating to the decision to suspend the claimant and later to initiate the disciplinary process against the claimant for the various alleged acts of misconduct, the disciplinary process up to the issue of the decision letter after the disciplinary hearing and the appeal process up to the issue of the decision letter by the appeal manager.[216]The suspension claimant told us that he always felt that being asked to return his uniform at the time he was suspended showed that Mr Fernando had pre-judged the outcome of his investigation as leading to dismissal. We consider that this was an ill-judged act. It was bound to cause the claimant to think he was going to be sacked, whether or not there was in fact any pre-judging of the outcome. That was potentially unfair as he might then have felt it was not worth trying to defend himself. Mr Fernando’s explanation suggested the request was for administrative reasons and he said he had not pre-judged anything. We consider that he had dismissal in his mind as a likely result of what he had found out (as he saw it) - not least because the warning in the invitation letter initiating the disciplinary process indicates that he saw all the “offences” as involving gross misconduct. Indeed, that warning itself appears to us to involve an element of pre-judgement as to the nature of the allegations. That too was potentially unfair – it would have been possible to refer to dismissal as a possible outcome and that if found guilty of gross misconduct summary dismissal was a possible outcome. However, we are unable to go a step further and conclude that Mr Fernando had in effect decided before the process began that the claimant was guilty of everything and/or would be dismissed. The evidence we have is not sufficient for us to reach that conclusion.[217]A reasonable investigation would probably have resulted in fewer allegations being pursued into the formal disciplinary process. The most serious ones would probably not have been pursued. In any event, in deciding to pursue all the allegations set out in the invitation to the disciplinary hearing, Mr Fernando does not appear to have considered whether the evidence he had obtained (assuming the facts were disputed, as was inevitable from the claimant’s response to the letter inviting him to contribute to the investigation) was sufficient to found a disciplinary case. If he had done that it is likely he would not have pursued all of the allegations, and especially those that were in the end not upheld for lack of evidence (such as the allegations around offering to supply drugs). The more serious drugs allegations were acknowledged by Mr Fernando at the hearing to have been upsetting. In the context of the number of allegations pursued in the disciplinary process, pursuing allegations based on insufficient evidence will have added to the claimant’s feeling of being treated unfairly. They would also have added to his burden in having to work out what he could do or say at the disciplinary meeting to defend himself and/or how to brief his union representative on the details so that he could assist in putting forward a “defence” to the allegations. In our view the reasons explored in this paragraph meant that pursuing all 16 allegations in the original list is a factor supporting the view that the process was unfair from the outset.[218]The claimant complained to us that it was unfair for Mr Fernando to run the disciplinary hearing. We agree with him that in his case it was inappropriate and unfair for the same person to have been the owner and manager of the business, the investigator and the decision maker on the appeal (at least for the purposes of running the hearing and deciding what happened). The claimant may reasonably have felt that Mr Fernando had also acted as prosecutor, in making a case against him and deciding what allegations to pursue at the hearing. In all the circumstances there was a real risk that Mr Fernando might not be able to approach the evidence and facts with an open mind, before considering any conflicts of evidence and making proper decisions on the facts. This is what any employee would reasonably expect from the person carrying out the hearing.[219]We are aware that it is not a strict rule that an employee’s manager cannot act as decision manager at a disciplinary hearing. But we note that the ACAS Code of Practice on disciplinary procedures states: “6. In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.” We do not have any evidence that it was not practicable for someone more independent to chair the hearing, whether or not the final decision on any sanction might properly have involved Mr Fernando. A more independent decision maker conducted the appeal hearing and we cannot see any reason why the same could not have happened at the disciplinary hearing. It is not just a question of whether an assertion by one witness is corroborated. It was never clear to us how Mr Fernando did resolve conflicts of evidence in his findings of misconduct.[220]The invitation letter to the disciplinary meeting set out some 16 allegations, warned him that dismissal was a possible outcome and informed him of the right to be accompanied. We note the warning referred to the company seeing the allegations against him as “gross misconduct offences” and that the outcome could be summary dismissal. This was presumably intended as a warning offered about the result if any of the factual allegations were “proved”, but we consider that the letter was unhelpfully worded as it would have led the claimant and his union representative to believe that the issue whether anything he might be proved to have done was “gross misconduct” had been pre-determined. In normal circumstances the employee should be able to make representations at the disciplinary hearing as to whether conduct amounts to gross misconduct and/or whether that should lead to summary dismissal. The words of the warning also skated over the possible issues as to whether any conduct of the claimant was misconduct at all or, if it was, whether it was serious enough for dismissal to be one of the sanctions open to the employer.[221]As far as we could tell, the email attaching the invitation also attached the investigation report and the various statements which were relied on at the disciplinary hearing as evidence of misconduct. The claimant was also informed he could view the relevant CCTV footage before the meeting started. This email was sent on 12 April at 9.59 pm (the same day as deadline for the claimant’s response to the questions sent as part of the investigation). The letter gave the date of the meeting as the following Monday, 17 April at 2.30 pm although the meeting is recorded as taking place at 10.00 on Tuesday 18 April 2023.[222]In the claimant’s case, relying on documents being sent by email was not an especially reliable or helpful means of communication. He is not a person who is comfortable with documents and technology and was most unlikely to have a means at home of printing out documents. There were many pages of attachments, all important and new to him. Hard copies delivered to him, and perhaps signed for, would have been a more reliable method of communication. He would inevitably need hard copies and the respondent could easily have arranged to supply them. We do not know if and when he got them, but it was likely to take up some time to obtain them. All of these things are factors against regarding this aspect of the procedure as fair.[223]In our view, the time interval before the disciplinary meeting was so short, in the circumstances of the case against the claimant, that it gave him no real chance to defend himself properly at that meeting. He told us that he did not see the email and the attachments until the Friday (14 April). We had no reason to disbelieve him and accepted what he told us. But in any event an email sent at 9.59 pm on one day may well not be read until the next day and, in our view, whether he saw it on the Thursday or the Friday is not material to our conclusion on this matter.[224]The misconduct allegations set out in the letter were many and varied and some were obviously serious. The claimant needed enough time to understand them and the evidence and to consider his defence, to consult his union and take advice, to seek assistance at the hearing and perhaps to seek any evidence from others he might want to rely on. He managed to arrange for a union representative to assist him at the disciplinary meeting, but we do not consider that there was time for that representative to digest the allegations and evidence and provide all the advice and assistance the claimant needed.[225]In our view the failure to allow time sufficient for the claimant to defend himself effectively was a fatal flaw in the procedure that rendered the procedure unfair, even without any of the other shortcomings we have identified.[226]The record of the disciplinary meeting provided to the claimant, and later to us, was poor. It is not clear on its face who was who or who said some of the things mentioned. Nor does it purport to record everything what was said. It would have been possible to record the meeting if a proper note was not going to be taken, but this was not done. On the face of it the record suggests the script given to Mr Fernando may not have been followed. The report is relatively short (compared with the transcript of the appeal hearing and the suggested script) and the content, in a largish font, cannot possibly fully and accurately reflect what was said over the time the meeting took. This is unsatisfactory and unfair, not least because there are likely to have been things said that are important and should have been recorded, not least for the purposes of any subsequent appeal or employment tribunal proceedings.[227]Without a better record it is hard for us to tell whether the meeting was conducted fairly, so as to produce a sound basis for Mr Fernando to decide what had happened (in term of the basic facts, some of which were hotly disputed) and, as importantly, to decide what he thought about the reasons put forward by the claimant for concluding he had not done anything wrong. There is little in the record to suggest that Mr Fernando had dealt with the allegations by putting them fairly to the claimant, perhaps with a brief summary of the evidence for them and asking him for his response on the facts and for comments as to whether he had committed misconduct. If he did not ask the right questions then his decisions would inevitably be fatally flawed. However, this point was not addressed by the parties and we have limited evidence on which to make up our own mind. So we do not rely on it as a reason for considering the procedure to be unfair. The poor record itself is, in our view, a factor that points to an unfair process. It must have made it harder for the claimant and/or his union representative to appeal effectively, and it made it impossible for us to tell whether or not Mr Fernando was focusing on the right questions during the hearing (before then deciding that a significant proportion of the misconduct allegations were well-founded).[228]Nor is it clear from the record whether Mr Fernando took the claimant through the evidence for each allegation. We would expect a fairly run disciplinary meeting to involve this, not least so the claimant can understand exactly what he is accused of and what Mr Fernando thought it showed. In particular, there is no reference to the content of the CCTV footage mentioned in the invitation letter, or what it shows. We have no idea if it was in fact shown to the claimant before or during the meeting. Again, we are left without any material on which to judge whether the proceedings at the meeting were fair. We cannot make findings on that, but this point reinforces our view that the lack of a proper record of the meeting was unfair[229]For all the reasons set out above, our conclusion is that the disciplinary procedure adopted by the respondent in the claimant’s case was not a fair procedure and was outside the band of reasonable responses for an employer in the circumstance.[230]We considered whether the appeal process was such as to address and remedy the procedural flaws we have identified, so as to make the procedure take as a whole a fair process. The appeal focused on two specific points raised by the claimant, and on whether the decisions made by Mr Fernando were justified. We do not see the appeal as sufficient to overcome the serious flaws we have identified in the disciplinary procedure or the preceding investigation.[231]Finally, in relation to the unfair dismissal claim, we refer to Issue 2.6, which set out the claimant’s main complaints as understood by EJ Roper when he produced his Case Summary: “2.6 The burden of proof is neutral, but it helps to know the claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows:2.6.1 the claimant says the allegations against him were untrue and were fabricated and that the respondent did not have any evidence of the same; and2.6.2 the procedure was defective because the decision-maker had been involved in the earlier instances and was biased; and2.6.3 the decision to dismiss was unlawful because it was discriminatory.”[232]This summary will have come from the claimant at the TCMPH held by EJ Roper some months before the hearing. It reflects his position throughout that he had not really done anything wrong and that some of the allegations were simply untrue. While we had some reservations about the plausibility of some of the evidence contained in the written statements relied on in the disciplinary meeting (and in particular the evidence about the claimant offering drugs), we are unable to conclude that any evidence was fabricated by the respondent. We have no evidence sufficient to justify any such conclusion. Nor is it our task to reach our own independent view on whether the allegations were “untrue” - we have addressed the Issues we consider arise under the present law relating to unfair dismissal and the functions of an employment tribunal in determining an unfair dismissal claim by assessing the fairness of what took place.[233]However, for the reasons given in more detail above, we are left with a case of alleged gross misconduct for which the grounds were largely insufficient. There was, we accept, evidence sufficient to provide reasonable grounds for deciding that some of the conduct involved in the misconduct allegations took place. But the question whether each relevant act was misconduct at all, let alone serious or gross misconduct, depended on all sorts of considerations. Those matters should have been considered as part of the investigation and before the disciplinary proceedings started. This did not happen.[234]The reasons for what went wrong before the claimant was dismissed are hard to pin down. We were troubled by the way in which a case was put together quickly to accuse the claimant of 16 instances of misconduct over a few days in March 2023, including some extremely serious ones. That, coupled with all the flaws we have identified, has led us to conclude that for some reason someone involved wanted to get rid of the claimant speedily and so the respondent decided to throw the book” at him in disciplinary proceedings. It is quite possible that it was felt that the claimant’s “face did not fit” in some way, and that his race was part of that.[235]Mr Fernando’s actions in carrying out the disciplinary hearing after investigating and formulating the allegations against the claimant certainly led to a perception by the claimant of bias or possible bias on the part of the claimant. We have agreed with him that Mr Fernando should not have carried out the disciplinary hearing. We do not consider it necessary to make a decision as to whether he was in fact guilty of bias, in order to deal with the Issues in this case.[236]We will address the issue whether the dismissal involved direct race discrimination in the next section of these Reasons, focusing on the Issues in the claimant’s discrimination claim. We explain there why we decided that the dismissal was tainted by discrimination.[237]In the light of our conclusions on each of the relevant Issues, it follows that the claimant was unfairly dismissed and he succeeds in his claim for unfair dismissal. That conclusion was inevitable taking those conclusions together. But we would have reached the same final decision on the basis of our conclusions on each of the main Issues (i.e. Issues 2.3, 2.4 and 2.5).[238]We considered Issue 2.7 (If it did not use a fair procedure, would the claimant have been fairly dismissed in any event and/or to what extent and when?) and Issue 2.8. (If the dismissal was unfair, did the claimant contribute to the dismissal by culpable conduct?). However, we have decided it would be fairer to leave these Issues for resolution at the Remedy Hearing. Issues 2.7 and 2.8 overlap with Issues that appear in the Remedy Issues listed by EJ Roper. We see them as Issues best considered together. We could see arguments for answering both Issues in the claimant’s favour, on the basis of the significant flaws in the case against the claimant as well as the flaws in the investigation and procedure. However we could also see arguments for saying(a) that had a fair procedure been adopted there was a chance, albeit a very small one, of a fair dismissal resulting and(b) that at least some of the claimant’s behaviour amounted to misconduct and so he contributed in a small way to the dismissal by culpable conduct. In the latter case, we had in mind the fact that there were reasonable grounds for concluding that claimant touched a female colleague without her consent.[239]Neither party addressed these Issues in their final submissions and we think it is right to give them the chance to do so before making any final decisions on matters affecting remedy. We note that a further consideration in this case will be Issue 6.4.6 in the Remedy Issues listed by EJ Roper in his Case Summary – whether either party unreasonably failed to comply with the ACAS Code of Practice on Disciplinary Procedures and, if so, whether any compensation for unfair dismissal should be increased or reduced by a proportion up to 25%. Direct race discrimination (Issue 3)[240]The claimant relies on being a black African and on the fact of his dismissal as being less favourable treatment. The respondent accepts that dismissal is in principle capable of being less favourable treatment. “3.3 The Tribunal will have to decide whether the claimant was treated worse than someone else was treated, known as the claimant’s comparator. There must be no difference between the circumstances of this comparator and those of the claimant. The comparator can be an actual person or, if there is no actual comparator then someone hypothetically. That is to say a hypothetical comparator whom the claimant says would not have been treated in the (less favourable) way in which the claimant was treated. The claimant relies on a hypothetical comparator. 3.4 If the claimant did suffer less favourable treatment above, was this because of race? Is the respondent able to prove that it was for a non-discriminatory reason unconnected to the protected characteristic in question?”[241]In the absence of an actual comparator, the claimant relies on a hypothetical comparator. The hypothetical comparator is a person who is not a black African person but whose circumstances are otherwise the same as (or not materially different from) those of the claimant.[242]Issues 3.3 and 3.4 must be read in line with section 136 of the Equality Act 2010 which is explained above under “applicable law”. This requires us to determine whether the claimant has proved facts from which we could decide that he was treated less favourably (in terms of his dismissal) than someone in the same circumstances who was not a black African would have been treated. If so, the burden shifts to the respondent to show that the dismissal was for a non-discriminatory reason unconnected to race. We note that it is not necessary for the claimant to show that his employer ever intended to discriminate against him.[243]We consider that there are various facts in this case which point towards a conclusion that the claimant was treated less favourably in terms of his dismissal than a hypothetical comparator who was not a black African would have been treated. We can summarise these as follows.[244]The great majority of the respondent’s other employees were Sri Lankan, as was Mr Fernando. Clearly, the claimant stood out among the other employees as a black African man.[245]The claimant was replaced by an employee of Sri Lankan heritage. He had joined the business a few months earlier on being appointed by Mr Fernando. There were no other applicants, and Mr Fernando told us he was appointed because he knew him already.[246]We concluded above, for a variety of reasons, that(a) the disciplinary process was unfair,(b) the investigation was inadequate,(c) there were no reasonable grounds for the respondent’s belief in some of the misconduct for which the claimant was dismissed and(d) dismissal was in any event not a fair sanction for the misconduct in question. The reasons behind all these failures were unexplained.[247]Also, a large number of allegations were made against the claimant in relation to conduct over a few days, after he had worked for over 6 years successfully without any significant disciplinary issues. The way things unfolded so quickly in a flawed manner has led us has led us to conclude that someone in the respondent’s organisation wanted to get rid of the claimant, again for reasons that were unexplained. In these circumstances, it is perfectly possible that the reasons were linked to the claimant’s race.[248]Some of the more serious allegations that were investigated were made by members of staff but based on very limited or no credible evidence. Two (relating to the claimant saying he wanted to rape a female member of staff and to selling drugs) were not in the end included in the list of “counts” in the disciplinary process. We note also that the CCTV evidence did not bear out the more serious aspects of the sexual harassment allegations. The reasons why these allegations were made in the first place were never explained.[249]The misconduct around drugs that related to the claimant’s nickname (used by some customers and staff) as “the ganja man” was plainly linked to the claimant’s appearance as a black African man of a Rastafarian appearance. It is hard to escape the conclusion that his race was at least a factor in the drugs-related allegations that were made against him.[250]Our conclusion is that the above facts, taken together, are facts from which we could decide that the respondent was guilty of direct race discrimination in treating the claimant less favourably when he was dismissed than they would have treated a hypothetical comparator who was not a black African.[251]Under section 136 of the Equality Act 2010 our decision on that question shifts the onus onto the respondent to show that there was no race discrimination involved in the decision to dismiss. This means the respondent has to show that the dismissal was for a non-discriminatory reason unconnected to the claimant’s race.[252]In giving evidence and in his final submissions, Mr Fernando was at pains to state that he did not racially discriminate, and that he did not do so when he dismissed the claimant. We do not disbelieve him in so far as he was asserting he did not deliberately intend to discriminate. However, as we have already explained, the law does not regard intention as an element of direct discrimination. It is perfectly possible to discriminate without intending or meaning to do so.[253]We have considered carefully everything in the bundle and Mr Fernando’s oral evidence and submissions. We have not identified anything other than Mr Fernado’s assertions that he had not racially discriminated against the claimant that tends to show positively that there was no direct race discrimination involved in the claimant’s dismissal. Accordingly, we conclude that the onus placed on the respondent by section 136(2) to show that it did not contravene section 13 of the Equality Act (the duty not to directly discriminate against an employee) has not been discharged.[254]It follows from that conclusion that we are required by section 136(2) to hold that section 13 was contravened by the respondent. So the claim for direct race discrimination is well-founded and succeeds. Remedy hearing[255]Directions will be given separately for a Remedy hearing to consider the Issues on Remedy listed in EJ Roper’s Case Summary of 12 April 2024. The parties are encouraged to try to resolve the outstanding remedy issues by agreement and are reminded of the availability of ACAS services to assist in their resolution.