A Harrison v St. Budeaux Community Bar CIC: 1405763/2023
EMPLOYMENT TRIBUNALS
Case No 1405763/2023
Between
A HarrisonClaimantSt. Budeaux Community Bar CICRespondent
Before
Employment Judge M. SalterMr. T. Perry (instructed by counsel) for claimantMr. M. Curtis (instructed by counsel) for respondentDate 7 May 2025
JUDGMENT
It is the judgment of the tribunal that the Claimant was unfairly dismissed. Absent the procedural errors identified, the Claimant would have been fairly dismissed after two weeks.
REASONS
References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement. References in round brackets are to the paragraph of these reasons or to provide definitions.
INTRODUCTION
[1]Despite giving reasons orally at the hearing above the Respondent, as is their right, has requested written reasons for this decision. The request was received on 21st March 2025, so is within the time limit set out in the rules.[2]The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to permanently remove judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 49 of the Employment Tribunal Procedure Rules 2024. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness. BACKGROUND The Claimant’s case as formulated in her ET1
BACKGROUND
[3]The Claimant’s complaint, as formulated in her Form ET1 [2], presented to the tribunal on 4th November 2023, is in short, she was unfairly dismissed [7 §8.1]. The Respondent’s Response[4]In its Form ET3, received by the tribunal 18th January 2024 [17], the Respondent accepted the Claimant was an employee and that she was dismissed, but denied that that dismissal was unfair, contending it was for a potentially fair reason, namely a reason related to the Claimant’s conduct and that that dismissal occurred after a reasonable investigation and was within the band of reasonable responses open to it. Continuity of Employment[5]There was also an issue raised over he Claimant’s length of service: the Claimant contends she has service from 2015 [14], the Respondent contends she has less than two-years’ service [25 §24]. This continuity point seemed to cover s218 of the Employment Rights Act 1996 or the Transfer of Undertakings (Protection of Employment) Regulations 2006. I will return to this matter below. Relevant Procedural History[6]When the claim form was presented it was made the subject of automatic directions [29]. It was listed for a two-day final hearing. On Friday, 7th March 2023 the matter was relisted for a one-day time estimate. THE FINAL HEARING[7]The matter came before me. The Claimant represented by Mr Perry of counsel, the Respondent by Mr. Curtis of counsel[8]This was a remote hearing which was not objected to by the parties, being conducted entirely by CVP video platform. A face-to-face hearing was not held because it was not practicable and no-one requested the same it was conducted using the cloud video platform (CVP) under rule 46.[9]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no significant difficulties.[10]The participants were told that it was an offence to record the proceedings.[11]Evidence was heard from all witnesses via video link. I was satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence. Particular Points that were Discussed Timetabling[12]At the outset of the day, I discussed with counsel the way forward. I was concerned that there were seven witness statements and a number of issues that may mean the hearing went part-heard. Further, the continuity/s218/TUPE point did not seem to me to be addressed at all in any parties statements or in the documents.[13]It appeared a proportionate way to use the time today would be to determine the s98 claim and then, if necessary, case manage a separate hearing to determine the continuity issue. Both counsel agreed with this approach. I consider this an effective use of the time available and one which save the parties and tribunal wasting resources. DOCUMENTS AND EVIDENCE[14]I took some time to privately read into the witness statements exchanged between the parties and relevant documents. Witness Evidence[15]All witnesses gave evidence by way of written witness statements that were read by the me in advance of them giving oral evidence. I heard evidence from the following witnesses on behalf of the Claimant:(a) The Claimant herself;(b) The claimant’s partner, Mr Smart[16]I also heard evidence from the following witnesses on behalf of the Respondent:(a) Mr Luscombe, the dismissing manager(b) Ms. Thompson, dismissing manager and witness;[17]When each witness came to give their evidence, they did so by confirming the contents of their statements and then, following any brief supplementary questions, be open to be cross-examined on them. All witnesses were crossexamined[18]I gave such weight as I thought appropriate for those witnesses who did not attend:(a) Ms. Wendy Dwyer(b) Mr. Coombes. I was told that Mr Coombes had retracted his statement.(c) Ms. Valaire Anstice Bundle[19]To assist me in determining the matter I have before me today an agreed bundle consisting of some [92] pages (97 electronic) prepared by the Respondent.[20]Other documents were added during the course of the hearing without objection, namely a series of three text messages from Mr Coombes to Mr Luscombe purporting to retract his statement and document from George Nuttall dated 6th October 2023[21]My attention was taken to a number of these documents as part of me hearing submissions and as discussed with the parties at the outset of the hearing, before commencing their submissions, I have not considered any document or part of a document to which my attention was not drawn. List of Issues[22]On the morning of the Final Hearing a list of issues was sent to the tribunal by the Respondent’s counsel and copied to the claimant’s counsel. SUBMISSIONS[23]After lunch I heard submissions from both parties.(a) The Claimant’s submissions highlighted: (i) This case is the almost entire lack of documentation in relation to investigation there are no notes of interviews with witnesses. This is pretty hard to understand that when you take into account Mr. Luscombe’s stated position that he can only act on complaints where there are written versions of those events. (ii) I could not be satisfied the Respondent had reasonable grounds for the belief of the Claimant’s guilt as people were taking alternate sides on this; (iii) There was a failure to interview the Claimant’s partner (iv) there's no attempt during that weekend to speak to people who might have supported the claimants version of events; (v) he did conduct interviews with no further notes, even though we know that lawyers were involved at that point. And it's really astonishing that there would be no notes. (vi) second allegation. Again, this very strange conclusion in the dismissal letter that somehow the claimant had been verbally abusive yet this was never part of the allegations. Did not go and speak to the two witnesses could have cleared up and what. (vii) There was a total failure to either document the evidence of witnesses and to provide the. We can transfer reply to it because. The hearing on the 8th floor was we're getting a picture of six of one and half a dozen of the other. What the conclusion that you know, what we are now told where the evidence was from those witnesses? So, you know, clearly there was no opportunity to raise points and that the information provided by witnesses because you weren't providing this statement. So that it should have dismissal should be unfair on that basis alone. (viii) Procedurally, also in terms of the second allegation, it's very clear that Miss Thompson should not have been involved in taking the decision about the disagreement that she was involved in. (ix) Dismissal for gross misconduct would have been outside the range of reasonable responses. (x) two points in relation to Polkey. (a) The first is that. A properly conducted an investigation were taking place, the tribunal is not in a position to say what the conclusion would have been. (a) the second one would the claimant have been dismissed or would it have been fair to response to dismiss the claimants in any event?(b) The Respondent’s submissions were that: (i) size and administrative resources of the respondents. Four employees at the time, none of which it appears had any HR function. It really is a micro employer with limited administrative resources. (ii) The genuineness of the belief in this matter is agreed (iii) reasonable grounds: there is no evidence to counter account of Mr. Luscombe that he was told this by witnesses . The two people who don't have the vested interest given by Mr. Luscombe at the time and accepted by the claimant today that no obvious reason for them to give anything other than a full account. (iv) So accepting their accounts, it's reasonable grounds for the respondents to find with the claimant started the incident with Helen Lacock. (v) In terms of reasonableness of the investigation. Is the failure to interview people something which we're looking at the process as a whole. Could speak to Helen, but she did absent herself, is it reasonable for proceed without her, yes independent people saying what the situation was (vi) Polkey fist submission, the Claimant says there is no evidence, not right: we have the evidence of Mr Luscombe and make factual finding he is truthful, in those circumstances whatever the procedural issues dismissal was bound to follow. (vii) If not with the Respondent then dismissal on capability in any event on grounds of sickness absence. It is difficult to follow what she said an absent. In email says she was signed off initially for September and then from sept 2023 to April 2024,threw old be a capability dismissal as long term sickness absence, no evidence of how long, small organisation so need bar manager, (viii) If not with me on that then breakdown in working relationship. And got at [51-52] a document from the 3-bar staff, that says if change does not occur then find other employment. MATERIAL FACTS General Points[24]From the evidence and submissions, I made the following finding of fact. I make my findings after considering all of the evidence before me, taking into account relevant documents where they exist, the accounts given by Ms. Thompson, Mr. Luscombe, the Claimant and Mr Smart in evidence, both in their respective statements and in oral testimony. Where it has been necessary to resolve disputes about what happened I have done so on the balance of probabilities taking into account my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence including the documentary evidence. In this decision I do not address every episode covered by that evidence, or set out all of the evidence, even where it is disputed.[25]Matters on which I make no finding, or do not make a finding to the same level of detail as the evidence presented to me, in accordance with the overriding objective reflect the extent to which I consider that the particular matter assisted me in determining the identified issues. Rather, I have set out my principle findings of fact on the evidence before me that I consider to be necessary in order to fairly determine the claims and the issues to which the parties have asked me to decide.[26]The Respondent is a community interest company members bar. The Claimant was employed by it as bar manager. Its directors are Mr Luscombe, Ms Thompson and Valaire Anstice.[27]All parties agree that on 24 July an incident occurred whereby the Claimant became involved in a physical altercation with a customer, Helen Lacock. It is disputed as to who started that fight. The Claimant says it was Ms. Lacock, the Respondent says the complaints it had showed it was the Claimant who started the fight.[28]The Claimant’s partner: Mr Smart was present at the time of the fight.[29]There is no CCTV of the night. There is no footage either on the camera’s SD card or on the cloud storage for the day in question. Allegations and counter allegations are made as to why that is: it is alleged various people including the Claimant’s partner and Mr Luscombe’s son removed the card. I make no finding as to this issue. The CCTV was not before the Respondent at the time of the disciplinary hearing.[30]As part of the investigation into the incident, Mr. Luscombe spoke to Jess Rumsden, George and Charlie Nuttall and Gary Wiltshire. All of whom said it was the Claimant who started the fight. Mr Luscombe was aware he had to be wary of the evidence of the Nuttall’s’ as there was some tension between the claimant and (at least) Jane Nuttall, George and Charlie’s sister.[31]None of these accounts the Respondent received were put into writing and were not provided to the claimant.[32]Ms. Lacock, did not attend the bar for a number of weeks after the incident. She was not interviewed as part of the investigation.[33]Despite being aware of Mr Smart’s presence at the scene, Mr Luscombe did not seek to speak to him on grounds that he would be biased,[34]The state of the evidence at this time was that the allegations and counter allegations means the Respondent considered it “6 of one half a dozen of the other”. These investigations were ongoing and whilst they continued, the Claimant was not suspended after this incident and remained at work[35]The investigations still had not finished when, on 4th August, the Claimant had a conversation with Ms. Thompson over the stocking of Carlsberg in cans. Ms. Thompson raised the matter with the claimant and the Claimant said she would not stock it. This, the Claimant, accepts was Ms. Thompson’s decision. Ms. Harrison said to Ms. Thompson that if she was not happy with her work she should “sack [her]”. The Claimant alleges that Ms. Thompson sacked her on this date. Ms. Thompson denies this.[36]The Claimant sent Mr. Luscombe a text to say she had just been sacked. Mr. Luscombe then gave the Claimant a week off work.[37]Whilst she was away from work, Mr Luscombe states that other complaints were raised by staff and customers about the Claimant. None of these form part of the allegations before me or led to her dismissal, and for the reasons I give below I did not feel I needed to consider them in any detail[38]Prior to the disciplinary meeting, the Respondent had access to legal advice, and as a result of this, on 5th September 2023, the Claimant was called to a disciplinary hearing [54]. She was being asked to respond to three allegations, the two above and one that was found not to have occurred. The Claimant accepts that prior to the meetings she was aware of the charges she faced.[39]I should say that before the claimant could be provided with the letter inviting her to a disciplinary hearing, she provided Mr Luconbe with a sick certificate signing her off for two weeks. It is a matter of some confusion how long the claimant was off for. in correspondence she says she was off work until April 2024 when she was diagnosed with cancer. In her evidence today she said she was fit to attend work for around a month until October when she was signed of work again.[40]The disciplinary meeting took place on Friday, 8th September 2023. Present was the Claimant, Mr Luscombe, Ms. Tompson and an observer Ms. Valaire Anstice. Unbeknownst to all but the Claimant, the Claimant was covertly recording the meeting. She did not seek permission to do this. She did not do so as she knew she would be refused permission.[41]The bundle contained a transcript of the meeting. During this meeting:(a) Mr Luscombe described the state of evidence he had before him as “6 of one and half a dozen of the other” [56](b) The Claimant alleged she had been struck first and was defending herself(c) Ms. Thompson said she spoke to Mike Daw. In her evidence she said she could not recall who he said started the fight,(d) With regards the 4th August meeting, the Claimant accused Ms. Thompson of lying.[42]During the meeting names of various witnesses were raised [56]. Mr Luscombe had interviewed some of them, he did not seek out Mr Smart as he was concerned that he would be biased.[43]There are no written records of any of these investigations, and so the Claimant was unable to address or consider them.[44]Mr Luscomb says that he made further enquiries over the weekend and spoke to other witnesses. There are no records of these further investigations. The Claimant was not given an opportunity to respond to these investigations as as a result of this meeting and subsequent investigations, the claimant was summarily dismissed on 11th September (the following Monday). The decision was taken jointly by Ms. Luscombe and Ms. Thompson. The letter dismissing the Claimant offered her a right of appeal. The appeal was to be to Ms. Anstice, the Respondent’s chair, who had observed the disciplinary hearing.[45]Ms. Thompson and Mr Luscombe considered all options open to them when considering their outcome. Mr Luscombe, accepted that, if he found that the Claimant was the victim of the assault, would have acting in self-defence and would not have dismissed,[46]Mr. Luscombe says that had it been his decision alone, the claimant should have been dismissed for the fight, but not for the disagreement on 4th August that would have resulted in a warning, and perhaps dismissal further down the line.[47]The Claimant did not appeal THE LAW The Burden of Proof
THE LAW
[48]The following propositions are set out in shorthand, as the longer quotations from the various judgments are so very well-known:(a) The burden of proof falls on the party seeking to establish the truth of any particular fact. It is not for the party opposing a finding to disprove a case; no burden rests on them: see Re M (Fact-Finding Hearing: Burden of Proof) [2012] EWCA Civ 1580, [2013] 2 FLR 874.(b) The standard of proof is the balance of probabilities: see Lord Hoffman in Re B [2008] UKHL 35, [2009] 1 AC 11, [2008] 2 FLR 141. Employment Rights Act 1996[49]So far as is relevant the Employment Rights Act 1996 states: 95 Circumstances in which an employee is dismissed(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) …, only if) (a) the contract under which he is employed is terminated by the employer (whether with or without notice), 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.[50]I reminded myself of s.98 of the Employment Rights Act and that when hearing a case of unfair dismissal, a Tribunal’s powers are limited, specifically that I am not permitted to substitute my judgment for that of the employer. Rather, it is for me to say whether both the decision to dismiss (Iceland Frozen Foods -v- Jones [1983] ICR 17 EAT) and the way in which the investigation was conducted (J Sainsbury Pic -v- Hitt [2003] ICR111 CA) fell within the range of responses of the reasonable employer, in the circumstances in which the Respondent found itself. If the dismissal or the conduct of the investigation falls within the range, it is fair, if outside, then it is unfair. In a misconduct case such as this, I am guided by the case of British Home Stores -v- Burchell [1980] ICR 303 EAT which sets out the well-known three-fold test, where the Tribunal must be satisfied that the employer held a genuine belief in the employee’s guilt; that it had carried out a reasonable enquiry and that in consequence of that enquiry, it had reasonable grounds for holding that belief. The burden of proving fairness in this respect is neutral. CONCLUSIONS ON THE ISSUES[51]Having regard to the findings of relevant fact, applying the appropriate law, and taking into account the submissions of the parties, I have reached the following conclusions on the issues the parties have asked me to determine. Address any general issues such as credibility[52]Potent and highly relevant is the description which Leggatt J set out in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) (15 November 2013), paras 15-21, in relation to testimony based on memory: ‘An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. […] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. […]’[53]The matter before me has little contemporaneous documentation to assist with my determination. Findings on the Issues Issue 1: genuine belief[54]I have decided that the reason for the claimant’s dismissal was a reason related to her conduct, namely the incident on 24 July and the conversation on 4th August.[55]No other explanation has been put forward by the claimant for this, but I do not give that much weight, the burden here is squarely in the Respondent to show what were the facts it had in its mind when dismissing her: I find that Ms. Thompson and Mr Luscombe had the allegation of 24th and 4th August in their minds, indeed this was not disputed by the Claimant in closing. Reasonable grounds (LOI issue 3.1)[56]When considering the justice and merits of the claim I must consider, amongst other things, the size and economic resources of the respondent.[57]Here the Respondent is a small business, with 4 members of staff [17]. However, it has access to legal advice and sought that advice prior to the disciplinary hearing.[58]Did they have reasonable grounds for that belief. I find that they did. At the time they dismissed the Claimant Mr Luscombe had spoken to witnesses including independent ones, in as much as they were not the protagonists’ partners, as well as talking to other people. I have no reason to doubt this account given by Mr Luscombe and do not doubt his account of having spoken to those witnesses. I found him to be a credible witness and one who was seeking to assist the tribunal with my task Issue 3.2: was this based on a reasonable investigation[59]Whilst the ambit and scope of the investigation fell within the band of reasonable responses, in that appropriate people were interviewed and a decision was taken, I was concerned that something must have been said after the meeting, which the claimant was not able to respond to, that moved the dial from “six of one half dozen of the other” to a finding of gross misconduct. The evidence was not provided to the claimant in advance of the hearing, nor was she given the opportunity to respond to matters that were investigated after the hearing, and which must have influenced the Respondent. Issue 3.3: procedurally fair manner[60]Turning to the requirements of a fair procedure, I find that a fair procedure was not followed in the circumstances which complied with both the requirements of the ACAS Code and the general requirements of fairness.[61]I am mindful of the fact that I am judging the decision to dismiss according to the range of reasonable responses of a reasonable employer, and I should not substitute my judgment for that of the employer on this point.[62]I consider there are a number of aspects o the procedure which placed it outside the range of reasonable responses:(a) in the process was the lack of any notes of interview provided at any point to the claimant;(b) The process raised a number of concerns for me, firstly the adequacy of the claimant being able to challenge the accounts of her accusers: she did not know the account prior to the hearing, and was not given an opportunity to respond to the fresh accounts obtained after the meeting;(c) Ms. Thompson’s involvement in the decision to dismiss when she was the employer’s only witness in one of the allegations. I reject Mr Curtis’s strict demarcation he asked me to draw between the charge based on Ms. Thompsons involvement is only the second of the allegations, and I do not think that a reasonable employer could have arrived at the conclusion that her involvement in the decision-making process was appropriate. The process, therefore falls outside the range of reasonable responses.(d) The Respondent did not seek the account of the Claimant’s partner. I can see that, Mr Luscombe had a reasoned approach to this: he thought that MR Smart would be biased. This, to me is an approach that a reasonable employer could have, however, having received the account of Ms. Lacock’s partner, I think it was an unreasonable step to exclude Mr Smart’s evidence on the reason given;.(e) Turning then to the investigation of the 4th August: named individuals were available as witnesses to that conversation, they were not approached. The Respondent relied entirely on the account of Ms. Thompson, despite there being a clear dispute as to what was said;[63]Taking these failures together collectively I consider the process was not within the range of reasonable responses, open to a reasonable employer. Issue Three: dismissal in range of reasonable responses.[64]Based on what it genuinely and reasonably believed, I think that dismissal was within the band of reasonable responses open to an employer, on the material it had before it its bar supervisor had been the instigator of a physical altercation in its bar with a customer.[65]I cannot say that dismissal in these circumstances, falls outside the range of responses open to the employer Polkey[66]I have found there are procedural errors in the process. I must therefore speculate as to what would have happened if those errors were not present.(a) The Respondent could have fairly dismissed the Claimant in these circumstances, and I have made finding of fact on this;(b) Absent Ms. Thompson’s input to the decision what would have happened? I have little doubt that if the decision was Mr Luscombe’s alone he would have made the decision to dismiss based on what he knew. Indeed, he told me this in evidence, and I have no reason to doubt him on this(c) Looking at the absence of the documentation being provided to the claimant: I find this would have made no difference to the outcome: the claimant had given her account that she was the victim, and this was discounted by the Respondent. If the claimant had been provided with the account so people saying she was the aggressor I find this would not have altered the claimant’s account[67]I consider that it would have taken a week for the Respondent to have provided the claimant with that material and sought her input ,and a further week to have received her input and made its decision I therefore consider the claimant would have been fairly dismissed two weeks after she was, in fact dismissed Contributory Fault[68]I was not asked to make a deduction on grounds of contributory fault. Indeed, the Respondent had not produced any evidence on which I could have found on the balance of probabilities that the Claimant committed the acts she was dismissed for.