Mr R Baker v South Western Ambulance Service NHS Foundation Trust: 1405959/2023
EMPLOYMENT TRIBUNALS
Case No 1405959/2023
Between
Mr R BakerClaimantSouth Western Ambulance Service NHS Foundation TrustRespondentDate 30 January 2025
JUDGMENT
The following allegations are struck out.
REASONS
[1]The claimant was ordered to pay a deposit of £25 following a preliminary hearing held on 15 October 2024 as a condition of pursuing the following two allegations:(i) that the respondent had actual or constructive knowledge of his disability before 17 August 2023; and(ii) that the respondent had a provision criterion or practice of ignoring the claimant’s medical condition. The Order was sent to the claimant on 28 October 2024. The claimant has failed to pay this deposit. The claimant may no longer pursue these allegations because they are therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.[2]The claimant’s remaining allegations will be heard at the hearing fixed for 2 July 2025. Approved by[1]Claimant’s applications. The Judgment having been sent to the Claimant on 30 October 2025, his applications are within the time limit set in Rule 69. Briefly, those applications are summarised as follows:a. He requests that another judge decide this application. There is, however, no provision within the Rules for a judge other than I to deal with this matter, and the Senior President’s Practice Direction on panel composition states: ‘15. Save where the Employment Appeal Tribunal has ordered otherwise in respect of a remitted case, it is likely to further the interests of justice and accord with the overriding objective to retain the same panel composition throughout, such that subsequent applications are considered by the tribunal that made the original decision on liability…’. This matter is not, therefore, considered further.b. That, during closing submissions, his representative was prevented by the Tribunal from making submissions in respect of a Polkey deduction.c. That a finding of 100% Polkey was unjust, on the basis that the evidence and procedural findings before the Tribunal were not fully or properly considered.[2]Respondent’s response. The Respondent responded on 4 November 2025, resisting the applications.[3]Format of Reconsideration Procedure. Neither party having requested a hearing, I consider, subject to Rule 70(3) and (4) that one is not necessary in the interests of justice and that therefore I shall deal with this matter by way of written submissions only.[4]Claimant’s Representative not Permitted to make submissions on Polkey. The Respondent’s submissions in this respect state: ‘In any event, neither Respondent’s counsel nor his instructing solicitor (present at the hearing) agree with the Claimant’s recollection of events. The Tribunal will have the benefit of its own note, and/or the recording of the hearing. For the avoidance of doubt, however, the Respondent’s view is that on 14 October 2025, the Tribunal received written submissions from the Claimant and Respondent. The written submissions filed by both the Claimant and the Respondent expressly addressed the matter of a Polkey reduction (at paragraphs 89 and 54 respectively). The Tribunal then heard oral submissions from counsel for each party. During her oral submissions, counsel for the Claimant sought to cover the entire scope of remedy. It was explained to her that the Tribunal was, at that stage, considering liability. Respondent’s counsel then interjected to point out that the matter of Polkey and contributory fault might also be helpfully considered at this stage, and that he had already briefly addressed those matters in his oral submissions. The Tribunal agreed and explicitly asked counsel for the Claimant for her submissions on the points of Polkey and contributory fault deductions. Claimant’s counsel made some general observations as to the fairness of the dismissal and oral submissions then ended. Neither Respondent’s counsel nor his instructing solicitor were in any doubt as to the fact that submissions had been explicitly invited from the parties on the issues of Polkey and contributory fault. It is simply not open to the Claimant, or his representatives, to assert that they had no opportunity to make such submissions. Indeed, they did so in writing in respect of Polkey. If they now wish that they had presented their arguments in a different way, or more expansively than set out at paragraph 89 of the Claimant’s written submissions, that is a matter for them and not for reconsideration.’[5]That account entirely matches that of the Tribunal in respect of this matter. Claimant counsel was informed that the issues of Polkey and contributory fault would be dealt with at the hearing and oral submissions were invited from her (she having already provided written submissions which dealt with the entirety of both liability and remedy) and she will have, prior to that point, heard oral submissions, on both issues, from the Respondent’s counsel. The Claimant’s counsel was not, therefore, prevented from making submissions on these issues and this element of the application is therefore dismissed. 6. 100% Polkey Deduction ‘Unjust’. The Claimant asserted the following ‘substantial procedural and evidential errors’:• The improper admission of an historic witness statement (DH) in breach of the Respondent’s own Dignity & Respect at Work Policy.• Clear evidence of potential collusion between key witnesses, which was neither investigated nor properly weighed.• The use of undisclosed safeguarding documents and a subsequent untested child abuse allegation, both of which tainted the disciplinary and appeal outcomes.• The post-hearing introduction of a new “impact statement” that improperly introduced the allegation of “grooming” after the appeal hearing had concluded.• A pre-determination of guilt evident in early management documentation before any investigation took place.[7]However, each of those alleged ‘errors’ was considered in the Judgment (or could not be), as follows:a. It was found that the Respondent was entitled to rely on DH’s statement, for the reasons given.b. It was not accepted by the Tribunal that there was evidence of collusion, for the reasons given.c. It was accepted by the Tribunal that the safeguarding/abuse allegations/impact statement should have been disclosed to the Claimant (and which lead to the finding of procedurally unfair dismissal), but it was also found that regardless of such allegations, the seriousness of the Claimant’s actions towards his colleagues and his complete inability to accept that he had done anything wrong or to take responsibility for them rendered his fair dismissal inevitable, in any event.d. The allegation as to a ‘pre-determination of guilt evident in early management documentation …’ was not made at the hearing or put to the Respondent witnesses and therefore could not form part of the Judgment. It was, however, clearly an allegation that the Claimant could have put, as any evidence to support it would have been available to him at the time of the hearing, but he did not and that is not, therefore, a ground for reconsideration. In Redding v EMI Leisure Ltd EAT 262/81 the claimant appealed against an employment tribunal’s rejection of her application for a review of its judgment. She argued that it was in the interests of justice to do so because she had not understood the case against her and had failed to do herself justice when presenting her claim. The EAT observed that: ‘When you boil down what is said on [the claimant’s] behalf, it really comes down to this: that she did not do herself justice at the hearing, so justice requires that there should be a second hearing so that she may. Now, justice means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice’. That principle applies here – reconsideration is not an opportunity for a ‘second bite of the cherry’.[8]In respect of the matters considered in paragraph 7 a to c (above) simple disagreement with the Tribunal’s findings in respect of those matters is not a ground for reconsideration.[9]Conclusion. I don’t consider that any of the grounds raised by the Claimant in support of his applications for reconsideration render it in the interests of justice to vary or revoke the original Judgment. In addition, it is in the public interest that there should be finality in litigation, and the interests of justice of course apply to both sides.[10]Decision. Accordingly, I refuse the applications for reconsideration pursuant to Rule 68.[1]The Claimant was an employee of the Respondent, in the role of an ambulance nurse, from 2019 until his summary dismissal on 28 June 2023, for alleged gross misconduct, essentially the sexual harassment of three colleagues.[2]He brings claims of unfair dismissal and direct discrimination on grounds of sexual orientation. However, at a later point in the Hearing, the Claimant withdrew his discrimination claim, which is not therefore considered further. The issues in respect of the unfair dismissal claim are set out in the agreed List of Issues [812-816]. While very many issues were pleaded, only a minority of those were pursued in this Hearing and which are considered in our conclusions below.
The Law
[3]We reminded ourselves 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 we are not permitted to substitute our judgment for that of the employer. Rather, it is for us 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 Plc –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.
The Facts
[4]We heard evidence from the Claimant. On behalf of the Respondent, we heard evidence from three former colleagues, who had made complaints about the Claimant, Messrs George Perrett, George Medcalf and Dmitri Holloway and from another former colleague, a Ms Jodie Stockley who was aware of these events at the time. We also heard evidence from Ms Stephanie Bonser, the County Commander for the Service, who dealt with what she described as an informal facilitation meeting, between the Claimant and Mr Perrett and who also made the decision to suspend the Claimant. Finally, in respect of the disciplinary procedure, we heard evidence from Ms Janet Bayet, the disciplining officer and Ms Claire Melbourne, the appeal officer.[5]The Respondent is a large employer with all the requisite administrative and legal support.[6]Chronology. We set out the following agreed chronology in this matter:a. September 2019 – the Claimant joined the Respondent.b. December 2019/January 2020 – the Claimant worked with Mr Holloway.c. March 2021 – the Claimant started working with Mr Perrett.d. October 2021 – the Claimant started working with Mr Medcalf.e.25 April 2022 – Mr Perrett raises concerns about the Claimant’s behaviour [191-192].f.29 September 2022 – Ms Bonser meets with the Claimant and Mr Perrett ‘informally’ to attempt to resolve issues between them.g.14 October 2022 – Mr Medcalf provides a statement concerning the Claimant’s behaviour [211-218].h.27 October 2022 – the Claimant is suspended, pending investigation.i.24 November 2022 – investigation meeting with Claimant and his union representative [282-289].j.29 November 2022 – Mr Holloway provides a statement as to the Claimant’s behaviour towards him [291-293].k.12 January 2023 – further investigation meeting [294-297].l.17 April 2023 – the Claimant is invited to a disciplinary hearing.m.24 May 2023 – disciplinary hearing [371-386].n.28 June 2023 – meeting to discuss the outcome, which is to dismiss for gross misconduct [396-403].o.10 July 2023 – the Claimant appeals against that decision [407- 408].p.17 August 2023 – appeal hearing [433-444].q.1 September 2023 – dismissal upheld [456-459].[7]Claimant’s Evidence. The Claimant’s evidence is summarised as follows:a. The Claimant worked with a colleague, Mr George Perrett, from March to November 2021. He is a qualified nurse and worked on ambulance duties, as one of a two-person crew. Mr Perrett was a recently qualified Emergency Care Assistant.b. On 26 April 2022, Mr Perrett complained to his line manager of the following behaviour of the Claimant [191]: i. Being inappropriately touched, to include the Claimant putting his hands onto Mr Perrett’s hips when moving past him. ii. That despite requests by Mr Perrett to desist from such behaviour, the Claimant persisted in it. iii. That, as a consequence, he didn’t wish the Claimant to contact him on social media, and he also didn’t wish to work with him any longer.c. In response, the Respondent’s HR team suggested an informal facilitation meeting, which took place on 28 September 2022. It’s common evidence that notes were not kept of this meeting, but in a subsequent email from HR, of 3 November 2022, it is recorded that ‘both parties advised that the meeting provided resolution’ [237].d. The Claimant denied that he ‘bombarded’ Mr Perrett with social media messages.e. In response to Mr Perrett’s allegations, the Claimant said the following: i. That they were motivated by the Claimant’s disclosure of his sexual orientation to Mr Perrett (although he subsequently withdrew that allegation in cross-examination). ii. That inadvertent contact was unavoidable in the close confines of an ambulance and that any such contact was not of a sexual nature. iii. A specific, subsequent, allegation that the Claimant had unbuckled Mr Perrett’s trouser belt and touched him inappropriately was ‘totally out of context and untrue’. He said that such contact was necessary for the purposes of training Mr Perrett in how to conduct physical examinations on patients. iv. He denied that that he engineered shift patterns in order to work with Mr Perrett. v. There were no other witnesses to the alleged events and no possibly-relevant CCTV footage was viewed.f. On 14 October 2022, another colleague, a Mr Medcalf made similar complaints, to which the Claimant responded as follows: i. He denied engaging in sexually based comments but did accept that the use of double entendre and ‘banter’ was common among ambulance crews. ii. He reiterated his statement as to inadvertent, non-sexual touching being inevitable. iii. He believed that based on the similarity of both sets of complaints, collusion was indicated. iv. He denied specific allegations of touching Mr Medcalf’s hand, placing his own hand below Mr Medcalf’s bottom, prior to him taking his seat in the ambulance, or any similar approach of a sexual nature. v. He again referenced the need, when training for specific scenarios that clothing be lifted or moved (such as lifting a shirt up) and that trouser belts be undone. vi. He needed to ‘tap’ colleagues’ shoulders or legs, to get their attention, in a noisy situation. vii. That Mr Medcalf had had no concerns, until he (the Claimant) had disclosed his sexual orientation to him.g. On 29 November 2022, another colleague, a Mr Holloway made complaints of a related nature [291]. He did so at the request of the investigating officer. He also referred to inappropriate touching. The Claimant denied these allegations also, reiterating his belief that all three complainants had colluded together. He also asserted that Mr Holloway was motivated by his view that ambulance staff should be paramedics, rather than nurses (as the Claimant was).h. The Respondent decided to investigate these allegations and the Claimant said that when first interviewed on 24 November 2022, he considered that he had been ‘ambushed’ at the meeting, being unaware of the details of the allegations against him. He challenged the outcome of the investigation, which was to recommend disciplinary proceedings, in particular citing the lack of notice of the allegations; lack of specific dates for alleged events and that Mr Holloway was not interviewed.i. In respect of the disciplinary hearing conclusion, which was that he had committed the behaviour complained of, he challenged that conclusion on the basis of lack of independent witnesses and repeated his belief in collusion.j. He also disagreed with the subsequent appeal outcome, which upheld the disciplinary decision, referring again to the lack of independent witnesses and CCTV footage.[8]Claimant’s evidence in Cross-Examination. A summary of that evidence is as follows:a. The Claimant accepted that he was considerably more clinically trained and experienced and longer-serving than all three complainants.b. Despite the disclosure of a very large volume of social media communication (481 pages of Facebook messaging), a portion of it being sent by the Claimant to the complainants after he had been told to cease such contact, he denied that he was being ‘obsessive’ or was ‘bombarding’ them with such messages.c. When asked about his messaging and shift sharing with Mr Perrett, the Claimant said that ‘He (Mr Perrett) didn’t realise the support he gave me during COVID … I made friends with him … it was obsessive, but I was unwell … he was an emotional crutch.’d. The Claimant denied that Mr Perrett was entirely clear with him about his wish to stop all contact and to cease working together, instead contending that Mr Perrett was merely ‘venting’ and would, once he had done so, restore the relationship.e. He accepted, however (blaming COVID) that he ‘wasn’t listening’ to Mr Perrett and that he had become ‘overly emotional and intense’ which ‘overruled his rational brain’ and that ‘I failed to recognise that he was asking me to stop’.f. When challenged as to Mr Perrett’s alleged homophobic motivation for making his complaint, the Claimant withdrew that allegation but maintained it against the other complainants. When further challenged generally as to whether he continued to maintain the claim of homophobia (and therefore related discrimination on grounds of sexual orientation), he said that he ‘didn’t know’, that ‘it was a possibility’ but ‘hadn’t been investigated’ by the Respondent.g. He was challenged on his statement at the disciplinary hearing [383 – paragraph 214] that ‘I latched onto ‘second George’ (Mr Medcalf) in a similar way to the way I did when I was with the ‘first Goerge’ and now with hindsight that was unhealthy. I had an unhealthy dependence on them. He defined that at the time as ‘obsessive and too heavily reliant and dependent on them.’ In response to a challenge on this point he said that, ‘in retrospect, what I’d said then was not true, or was inaccurately recorded in the minutes.’h. In respect of the medical training point (as to moving clothing, unbuckling belts etc.) he was referred to Ms Stockley’s evidence on this point. She said that as a very experienced nurse, such behaviour was entirely inappropriate. He responded, first, by denying that it had happened, then said that if it had, he would have asked permission first and then finally said he couldn’t remember whether such things had happened, or not.i. He denied that following the ending of his working relationship with Mr Perrett, he then transferred the same behaviours to Mr Medcalf.j. When challenged that, on 22 August 2022, Mr Medcalf had told him of his discomfiture about being touched, he denied that and said ‘No, he confronted me about being gay and vented for 15 minutes and was angry that I had not told him that I was gay.’ He accepted, however that he had never previously made this allegation, either in the disciplinary procedure, or in his witness statement.k. The Claimant was referred to a Facebook message of October 2022 [S599] where, in response to Mr Medcalf stating ‘stop contacting me … I feel uncomfortable … I want to stop working with you, he responded ‘I can’t apologise enough. I too have had time to reflect and I agree that the way I behaved with you was obviously wrong ... I like human contact so yes I did much of what you say.’ ... Incidentally, it was similar with the other George, however the difference with him unfortunately is that after Covid and being thrown out of my accommodation I think I landed on him more heavily and that wasn’t particularly healthy either.’ He was challenged in cross-examination as to why he had, instead of denying these allegations, apologised for them and said that he was non-confrontational and was simply apologising for Mr Medcalf’s ‘perception’ of these events.l. The Claimant was referred to apparent admissions he had made in the investigation meeting [303], as to resting his hand on Mr Perrett’s driver’s seat and placing an item of equipment on his lap, with his hand under the equipment (with the implication that this was to facilitate the touching of Mr Perrett). The notes record ‘this might have happened, but that it wasn't intentional’. In response, in cross-examination, the Claimant repeated his contention that he had been ‘ambushed’ at the investigation meeting and that he had provided innocent explanations for such behaviour (i.e. not wishing to drop the equipment and needing to get his colleague’s attention). He denied the suggestion, in this Hearing, that he was being considerably less frank that he had been in the disciplinary process.m. The Claimant accepted the Respondent’s evidence that CCTV footage was only retained for a month and that therefore any relevant footage would have no longer been available to the Respondent.n. The Claimant was referred to a letter he had written, which he read out at the disciplinary hearing [344]. This said ‘I have yearned to help and please people from a young age. This sentiment has endured and strengthened throughout my life. It’s perhaps both my best and worst quality. Pleasing people makes me happy as generally the award is appreciation ... sadly not everyone sees the world in this light. My eyes have been opened wide over the last seven months. Some people choose to see the bad in people, are suspicious of the most innocent of acts. ... He added, that ‘since talking and taking medication, I feel far more emotionally stable and balanced.’ He was asked if he accepted that this letter was, with hindsight, self-pitying and indicated that he took no ownership of his actions and he said ‘No, I like words and it was a philosophical discussion’.[9]Mr Perrett’s Evidence. We summarise Mr Perrett’s evidence as follows:a. He started working with the Claimant in March 2021. Initially the working relationship was good, as the Claimant was effectively a mentor and Mr Perrett had no experience and needed guidance. He swapped shifts to work with the Claimant for that reason.b. However, after about a month, the Claimant began to ‘exhibit inappropriate behaviour’, in terms of both his communication with Mr Perrett and physical contact, which was not reciprocated by him. He summarised this unwelcome physical contact as follows: i. The Claimant putting his hands on Mr Perrett’s hips when getting past him in the ambulance, which he considered completely unnecessary. ii. Putting his hands on his mid-thigh area. iii. Brushing the back of his hands against his legs when passing a device to him. iv. While conducting some training, lifting his shirt without warning and undoing his belt buckle.c. Initially, Mr Perrett said that he tolerated this behaviour, but eventually, he ‘reached my limit’ and told the Claimant that ‘the touching needed to stop’. However, he said that despite this the Claimant’s behaviour continued for several months, with the Claimant attempting to excuse it by saying ‘he could not help it as he was a touchy-feely person’.d. He and the Claimant did meet up occasionally outside work and the Claimant met his wife and child. However, Mr Perrett over time felt that the Claimant was being too ‘intense’ and told him to ‘back off from me on a personal level’. On one occasion, when he reiterated this request, at work, the Claimant cried and pulled the ambulance over and Mr Perrett had to drive.e. Despite these discussions, the Claimant continued to swap shifts to work with him, without seeking permission. Mr Perrett reiterated his request that this stop [S4]. In a Facebook message of 28 November 2021, Mr Perrett said ‘you’ve really got to stop following my rota.’ The Claimant replied that he ‘was still trying to avoid you a wee bit, I don’t want to, but I know you need space. If you change your mind, say the word. I really hope you’ll work with me sometime.’ They didn’t work together thereafter, but the Claimant’s messaging continued.f. 2021 [S3], the Claimant said ‘I’m so sorry George, you may have given up, but I can’t. I’ll forever hope that you’ll like me again. I don’t even know if I need to be sorry for anything in particular, I’m just sorry for being me. ...’g. Mr Perrett said that the Facebook messages continued and exhibited obsessive behaviour by the Claimant both in their content and sheer volume. As a consequence, Mr Perrett felt that he had no choice but to make a formal complaint, which he did on 26 April 2022 [191].h. As however the Claimant’s behaviour continued, Ms Bonser arranged what she referred to as an informal facilitation meeting. Despite the Claimant admitting that his behaviour was obsessive and promising to cease communication, it very quickly recommenced after the meeting.i. Mr Perrett denied the Claimant’s allegation of collusion with the other complainants. He had known Mr Holloway in the past, as he (Mr Holloway) had dated his sister in 2019, but had had no contact since then. He didn’t know Mr Medcalf, but was introduced by a mutual friend, with whom they had both discussed their concerns about the Claimant. He only spoke to both complainants after he had submitted his own complaint and on being told by them that the Claimant had behaved in a similar manner towards them, suggested they also complain.[10]Cross Examination of Mr Perrett. Generally, in cross-examination, Mr Perrett confirmed his written evidence. He was asked about his discussions with Mr Medcalf and said they talked on the phone in general terms about their experiences of the Claimant and that he (Mr Perrett) encouraged Mr Medcalf ‘to speak up’. He denied any extensive contact and when referred to one Facebook message explained that that was of a professional nature about a patient. He firmly denied any collusion with Mr Medcalf, stating that he had never sent him his statement and that the reference in a Facebook message to Mr Medcalf having ‘sent his statement over’ referred to Mr Medcalf sending it to management [S617]. He also pointed out that the evidence being relied upon was not just the statements from the complainants but a host of contemporaneous messages.[11]Mr Holloway’s evidence. We summarise his evidence as follows:a. Mr Holloway only worked with the Claimant for three shifts, in January 2020. He said that in two of those shifts, the Claimant placed his hand on his inner thigh, whilst he was driving the ambulance and, on both occasions, he removed the Claimant’s hand.b. He said that he had previously been the victim of sexual harassment and therefore immediately realised that the Claimant’s behaviour was of the same nature.c. He went to his manager and asked not to be rostered with the Claimant again but didn’t share the reasons for that request.d. Although he didn’t again work with the Claimant, the Claimant nonetheless attempted to contact him on social media, which he blocked.e. He confirmed Mr Perrett’s evidence that he (Mr Perrett) had contacted him to discuss the Claimant’s behaviour and to ask him if he would also submit a statement. He confirmed that he had not seen Mr Perrett’s statement, or vice versa.f. He said that the Claimant’s conduct had very adversely affected his mental health, exacerbating pre-existing PTSD.g. He denied any collusion, pointing out in cross-examination that he wasn’t aware of Mr Medcalf’s complaint. He only became of the detail of that in the Tribunal proceedings.[12]Mr Holloway’s evidence in cross-examination. We summarise this as follows:a. He said that he didn’t complain at the time as he felt humiliated by the behaviour and he wanted to minimise the professional and social impact for him.b. He said that the Claimant’s actions still affect him to this day, both in terms of his mental health and his personal relationships. This is particularly so due to the long–running nature of these proceedings, both in the Nursing and Midwifery Council (NMC) and this Tribunal.c. He denied the assertion that he knew that Mr Perrett and Mr Medcalf were friends (their evidence is that they weren’t). He also said that he had not been friendly with Mr Perrett since dating his sister in 2019 and had had no further contact until he responded to Mr Perrett’s message.d. He did not accept that his memory was poor in relation to the incidents he complained of.e. He denied any collusion, stating that he was unaware of the contents of the others’ statements, until either the NMC or Tribunal hearings and had not provided his statement to the others.f. He said that an exchange of messages on 25 October 2022 [S814] was in relation to an ‘ongoing situation’ in respect of a professional matter involving a patient in which they were both involved and was completely unrelated, in respect of the allegations of collusion, to their complaints.[13]Mr Medcalf’s Evidence. We summarise this as follows:a. He started working with the Claimant around October 2021. From the outset, he found the Claimant had little regard for personal boundaries, standing too close and making sexual innuendos. He also felt that the Claimant was overly generous in insisting on purchasing meals and drinks, which he felt was a method of ingratiating himself.b. As with Mr Perrett, he was initially keen to learn from the Claimant and volunteered to share shifts with him. However, he became increasingly concerned about the Claimant’s focus on him, feeling that he was ‘tracking my availability on the Respondent’s rota system and planning his schedule around me.’ The Claimant also pressurised him to go part time so they could work together more frequently (as the Claimant also worked part-time).c. Between January to October 2022, the Claimant engaged in ‘inappropriate behaviour of a sexual nature’. That included touching his hand and stroking it when passing items, cupping his buttocks, touching parts of his body without consent, lifting his clothing and touching his abdomen in answers to medical questions about that region, to include sliding his hands beneath the waistband of his underwear. He said that the Claimant recorded one such incident on his phone, of his demonstrating a procedure, with Mr Medcalf lying on a stretcher with no top on, which Mr Medcalf found particularly disturbing and for which he could see no reason to record it. The Claimant on one occasion undid his belt buckle, without permission and touched his legs. After this he refused to engage in further training or learning demonstrations.d. He said that the Claimant would grab the ambulance keys from him, without asking, despite them dangling from his belt, near his groin.e. On passing the electronic patient clinical record, the Claimant would place it on Mr Medcalf’s genital area, which he felt was an attempt to touch him there.f. On occasions, the Claimant called him ‘hun’.g. He received voluminous messages from the Claimant over the period of a year, including goodnight messages with kissing emojis [S592].h. As the Claimant’s behaviour increased in severity, he decided to confront him about it on 22 August 2022, when he told the Claimant that his behaviour was making him uncomfortable. He said that the Claimant didn’t deny his allegations but refused to accept that they were inappropriate and harassing.i. On 19 September 2022, he messaged the Claimant, detailing his concerns about his behaviour and asking that all contact stop [S597-600]. The Claimant’s response was to deny any awareness of the effect such behaviour was having on him. He said that the Claimant’s response was ‘how you would expect someone to respond if they had just ended a romantic relationship. This in itself illustrates just how obsessed and intense the Claimant was with me.’j. He denied any collusion with the other complainants. He did speak with Mr Perrett, following a chance introduction and decided to also make a formal complaint. He drafted his statement independently and was unaware of Mr Holloway’s complaint.[14]Mr Medcalf in cross examination said the following:a. He stood by his statement. He agreed that he didn’t initially complain and said that the Claimant’s behaviour was often quick and unexpected, or while he (Mr Medcalf) was driving, restricting his ability to react.b. He said that the Claimant encouraged him to join social media and then sent random pictures, of a sexual nature.c. He regretted not complaining earlier about the Claimant.d. He disputed the Claimant’s denial that the Claimant was sexually interested in him, referring to the kissing emojis, use of ‘hon’, trying to hold his hand and on one occasion when the Claimant saw that he was upset, because his wife was having problems with her family, speculated as to whether they were getting divorced, which Mr Medcalf saw as the Claimant wanting his wife ‘out of the way’.e. He denied the Claimant’s allegation that in their discussion on 22 August 2022, he had become angry with him due to the Claimant not previously disclosing his sexuality. He said that he was simply asking him to cease his behaviour and didn’t ask him about his sexuality.f. As to the allegations of collusion, he was unaware of both the contents of Mr Perrett’s statement and when it was lodged, although he did accept that they had discussed the Claimant’s behaviour together.g. He said that the references in the social media messages to ‘George and I needing to go further’ [S607] was simply him acknowledging that ‘I needed to speak up’, but he was hesitant because he knew that doing so would be damaging for the Claimant. However, on the other hand he wished to stop the Claimant continuing the same behaviour with others.[15]In Ms Stockley’s statement, she said that, on 1 July 2022, she noticed Mr Medcalf’s discomfiture in the Claimant’s presence and which prompted her to ask Mr Medcalf about it. On 5 October 2022, she discussed the Claimant’s behaviour with the Claimant and said she ‘berated him’ and warned him that he could face a sexual harassment charge. She was shocked that he did not understand the gravity of the situation. She also commented on the medical training methods used by the Claimant, stating that in her extensive experience as a nurse, she had never seen such methods of undressing being used and said that it ‘was entirely sexual behaviour’.[16]Managers’ Evidence. We are conscious that the evidence of the three managers involved, Ms Bonser, Ms Bayet and Ms Melbourne is detailed and lengthy in respect of explaining their involvement in the process. We will consider their evidence in relation to those allegations made by the Claimant in respect of failures in procedures, as detailed in his counsel’s closing submission (as opposed to the very many allegations made in the list of issues, but which were not pursued at this hearing). Taking each concern in turn, we consider the following evidence: a. Non-disclosure of Documents. It transpired (as not pleaded and not in the Claimant’s witness statement) that the Claimant’s main concerns with the procedure adopted was in respect of the Respondent’s reliance on documents not provided to him during the disciplinary process. We deal with each of them as follows: i. The first of these was a ‘Scope of Practice report’ [219], related to deciding on whether or not an employee should be suspended, bearing in mind safeguarding concerns. The report recorded allegations of ‘inappropriate behaviour towards male staff’ and safeguarding concerns that may arise from that. Ms Bonser was present at a related meeting and did suspend the Claimant. ii. Next, there is a ‘Safeguarding Statement’ [342] which was provided to Ms Bayet. That records the complaints of the three complainants. The author goes on to state ‘it is my opinion that on the balance of probabilities Richard’s actions demonstrate offensive behaviour and thus a breach of the implied term of trust and confidence between employees and employer. This is due to this behaviour presenting a transferable risk to vulnerable patients where Richard’s behaviour is deemed to be unsuitable for somebody working in a regulated role and thus with this transferable risk, suggests that they are unsuitable to work with vulnerable children and adults’. It goes on to refer to the Claimant ‘being found’ to have been ‘repeatedly involved in cases of ... lack of consent’. Ms Bayet accepted that she had not disclosed that document to the Claimant or discussed it, or its contents with him during the disciplinary hearing, as she was not aware she should have done so. She accepted that its contents ‘played a part’ in her decision. iii. The next document referred to is the ‘allegation record’ [578], which is an internal document, effectively creating a chronology of events involving the Claimant. There was no evidence, however that either of the decision makers were aware of this document. iv. Then there is the ‘Safeguarding Risk Statement’ [417]. This was a document provided to Ms Melbourne. This document was different from the previous one, in that it stated that ‘additional information’ had come to light, resulting in a referral to children’s social care. In short, a colleague had made an allegation against the Claimant, in respect of her child. The Statement said that the ‘Chair is asked to consider the above information when making their decision, when thinking about Richard’s appeal to his termination of contract.’ ... The decision is to be made on the balance of probabilities ... of future service users coming to harm.’ Ms Melbourne said that she and the other panel member had seen the document and not disclosed it to the Claimant or discussed the contents with him. She said that ‘it was not relevant to our deliberations, as it was a new allegation, and not evidence.’’ v. Finally, there is an ‘impact statement’ from Mr Medcalf provided to Ms Melbourne [447], which she had requested. In it, as well as detailing the impact upon him of the Claimant’s behaviour, he makes reference, for the first time, to ‘stalking and grooming’ by the Claimant. Again, this document was not disclosed to the Claimant, as Ms Melbourne did not consider it necessary to do so.[17]Addition to Mr Perrett’s Statement. Mr Perrett provided his first statement and then subsequently provided another, adding an addendum of a couple of sentences to it [263], several months later, providing some more details on his allegations of the Claimant touching him, to include the belt unbuckling allegation and as to continued communication from the Claimant. While it was contended in closing submissions that it was a procedural irregularity for this to be permitted, this assertion was not put to either Ms Bayet or Ms Melbourne in cross-examination.[18]The non-record taking in relation to the ‘facilitation meeting’. It is not in dispute that this meeting was not minuted. Despite there being apparent advice from HR to do so, all three managerial witnesses said that it was an informal attempt to try to resolve issues between the Claimant and Mr Perrett and that therefore note-taking would have been inappropriate.[19]Collusion. It was alleged throughout the Claimant’s evidence that the complainants had colluded in their evidence. Neither Ms Bayat nor Ms Melbourne considered this to be the case, because they did not consider the statements to be so similar and noted that they were lodged at different times.[20]Historic complaint. It was asserted that contrary to the Respondent’s own policy [592] Mr Holloway’s complaint should not have been taken into account, as it was ‘historic’ and that no required ‘assessment’ had been made by HR in that respect. Ms Bayat saw the allegations as relevant, exceptional and very serious and as they were not denied by the Claimant were appropriate to include and in respect of which she took HR advice. Ms Melbourne was not questioned on this matter.[21]Mr Holloway not interviewed. It is not in dispute that Mr Holloway was not interviewed. Ms Bayas said that as the Claimant didn’t deny the allegations he made there was no point in doing so. Ms Melbourne said that while she did follow up on that point, by that stage Mr Holloway had left the Trust’s employment and in any event, she considered his evidence less important than that of the other two complainants.[22]Failure to apply consistent sanctions in relation to similar cases. The Claimant adduced no evidence to support this allegation, such as reference to a similar case where the sanction was not dismissal. Ms Bayet said that it was her practice to make such comparisons, although she had no record of having done so. Ms Melbourne was not questioned on this matter.[23]Provision of details of allegations prior to the investigation and disciplinary meetings. We briefly repeat here, as stated in the hearing that there is no requirement in the ACAS code for an employee to be given any advance notice of an investigatory meeting. As to the disciplinary hearing there was no evidence that the Claimant was unaware of the charges against him prior to it. Therefore, these matters are not considered further.[24]Closing Submissions. Written and oral submissions were received from both parties and which we will consider (as thought relevant) in our conclusions below.
Conclusions
[25]Credibility. We found the Claimant not to be a credible witness, for the following reasons:a. There were serious inconsistencies between the account he gave at the time of the incidents and the one he gave in evidence at this Hearing. Examples are the Claimant’s evidence now on whether or not he unbuckled belts and his belated reference (only in crossexamination) to the alleged angry confrontation with Mr Medcalf on 22 August 2022. He said that where inconsistencies existed, his evidence at this Hearing should be preferred, as at the time of the disciplinary process, he was ill, with the symptoms of long Covid and which affected his mental health. When it was put to him that in fact his memory of events relatively recently preceding the disciplinary process was likely to be much more reliable than now, three or so years later, he disagreed. We found that assertion utterly implausible and consider that having made (inconveniently, for him) admissions in the disciplinary process, he now needed to ‘row back’ from such admissions in this Hearing. We note, also that he presented no medical evidence of any condition(s) he may have had at the time that may have rendered it difficult for him to engage in the disciplinary process and nor did he mention such at the time and this despite having union representation throughout.b. He steadfastly refused to accept or concede obvious points contained in the social media disclosure. Those documents clearly indicated that he was besotted with Messrs Perrett and Medcalf and that despite their insistence that he stop communicating with them, he persisted. Despite this, he attempted in this Hearing to portray this communication as mutual and welcomed by Mr Perrett, once he had ’vented’ about his concerns, which all the evidence, both documentary and oral indicated was not the case. Either, in these circumstances, the Claimant was being delusional in the giving of this evidence, or he was not telling the truth, either of which render him a highly unreliable witness.c. On very many occasions, he failed to answer questions directly, instead embarking on long-winded and usually irrelevant explanations’ and having to be brought back to the point. He also often requested to have questions repeated, or took long pauses before answering, giving the impression of ‘thinking on his feet’ as to the ‘best’ answer, rather than an honest one.d. He maintained, from the outset of these proceedings, serious allegations of sexual orientation discrimination against most of the witnesses in this hearing, without any obvious evidence to support them, only to then withdraw some allegations during the hearing and all of them during closing submissions. He said when challenged as to these allegations that he ‘didn’t know’, that ‘it was a possibility’ but they ‘hadn’t been investigated’ by the Respondent, indicating to us a lack of belief, even on his part, of the truth of what he was alleging.[26]In contrast we found the evidence of the Respondent’s witnesses to be forthright and honest. Where they had made mistakes or were in error, they admitted such. They didn’t speculate if, for example, unsure as to dates or other details. Further, their evidence was consistent both with contemporaneous documentation and also internally between their statements and their oral evidence. We found the oral evidence of the complainants as to the events leading up to their complaints (which was only required in this Hearing because the Claimant was alleging discriminatory behaviour on their part) to be particularly persuasive.[27]Claimant’s Challenges to the Fairness of the Dismissal. We turn now to the challenges raised by the Claimant in this respect, as set out above and find as follows:a. Non-disclosure of Documents. It is a fundamental requirement of natural justice that a person knows the evidence against them that may influence a decision-maker and has the opportunity to counter it. This opportunity was not afforded to the Claimant in respect of the documents that we found were before Ms Bayat and Ms Melbourne. Ms Bayat conceded that the safeguarding document she saw ‘played a part’ in her decision. Ms Melbourne denied that that was the case for her, but while we don’t doubt that she may believe that, it can only appear to an outside observer that, on a decision-maker being told that the person she is dealing with, a nurse, may be a risk to children that then that is bound to colour their view.b. Addition to Mr Perrett’s statement. We view this as a relatively trivial matter. It is entirely common for statements to be amended and added to, even in this Tribunal and Mr Perrett was simply adding some additional detail to allegations he had already made. The Claimant was aware of this additional detail in the disciplinary and appeal process and so was therefore not disadvantaged.c. The Non-Record taking of the ‘facilitation’ meeting. We view this as a complete irrelevancy. The purpose of the meeting was wellintentioned, to try to get Mr Perrett and the Claimant back to a reasonable working relationship, but due to the Claimant’s continued unwanted conduct, it failed. Whether or not a record was kept is neither here nor there as it had no implications or effect upon the subsequent disciplinary process.d. Collusion. Beyond the fact that the three complainants had spoken to each other at the time of bringing of their complaints, there was no evidence of collusion, that is, specifically, they co-ordinating their complaints, whether partially true or not, to ensure no inconsistencies. This would have required them, possibly, to meet together, either face to face, or digitally and to have communicated with each other as to details in their statements and finally to have seen each other’s statements to check details. No evidence existed of such behaviour. The statements are not, in fact, very similar. Mr Perrett’s is brief and set out on one page; Mr Medcalf’s, in contrast, is very detailed and runs to seven pages; Mr Holloway’s relates to an entirely discrete set of two incidents and does not, as might be expected if collusion were to have happened, seek to expand beyond those. Nor is there evidence, as asserted that the three complainants were ‘friends’. Mr Holloway briefly knew Mr Perrett while dating his sister in 2019, and not thereafter and Mr Perret and Mr Medcalf were introduced to each other for the first time, at the time of their complaints, by a mutual friend, with the aim of offering support to each other. What has happened here, we find, is that these three, relatively young and professionally inexperienced men needed each other’s support to overcome their understandable fears of making serious accusations against a very experienced and much more qualified individual, both because of possible consequences for them and genuine concern for the consequences for the Claimant. Nonetheless, they felt it very important that what was clearly sexually predatory behaviour by the Claimant should not be permitted to continue against others, to include colleagues and possibly patients.e. Historic Complaint of Mr Holloway. There is no definition in the Respondent’s policy as to what is an ‘historic’ complaint and we note that Mr Holloway’s complaint only predates those of the other complainants by a year and that Mr Perrett’s complaints, by the time they are brought, are themselves over a year old. The purpose of such a policy is to prevent ‘stale’ or evidentially difficult complaints to be brought, but this is not the case here – Mr Holloway’s complaints were, as we have found, clear and related to two discrete events that clearly, in view of the effect upon him, still to this day, stuck in his mind.f. Mr Holloway not interviewed. We agree that ideally Mr Holloway should have been interviewed, as were the other complainants and no reason was advanced as to why he wasn’t. It is the case that his allegations are narrow and discrete and therefore it may have been that it was thought unnecessary to seek further clarification and we also note the Respondent managers’ unchallenged evidence that the Claimant did not contest Mr Holloway’s claims of being touched, simply stating that if he did so, it was merely to get Mr Holloway’s attention. We don't consider that the lack of interview had any material effect on the outcome, Mr Holloway’s evidence being somewhat peripheral to that of the two main complainants.g. Failure to compare outcome to other cases. As recorded above, no evidence was produced by the Claimant of any other similar cases with lesser sanctions that should or could have been considered by the decision-makers. in any event, as we will find below, dismissal in these circumstances, that is of serial and prolonged sexual harassment by the Claimant, of a predatory nature, clearly falls well within the band of reasonable responses test.[28]Unfair Dismissal. We find as follows:a. Reason for Dismissal. The claim of discrimination on grounds of sexual orientation having been withdrawn there can be no dispute that the reason for dismissal was misconduct.b. Genuine Belief based on as much investigation as was reasonable. We are confident that Ms Bayat did have a genuine belief in the Claimant’s misconduct following a thorough investigation (less perhaps the failure to interview Mr Holloway). We struggle to imagine what else the investigating officer could have investigated. he interviewed the two main complainants and then conducted two thorough interviews with the Claimant, in which interviews the Claimant partially conceded the allegations against him. In those circumstances that can only have resulted in a decision that the matter should proceed to disciplinary proceedings. It was asserted that for some reason Ms Bayat should have then conducted her own further investigation into this matter, but we see no rationale for that. She had been provided with comprehensive and lengthy interview notes and a full report, with all evidence attached. What else (perhaps apart from interviewing Mr Holloway) was there to investigate? We note also the Claimant’s union rep’s fulsome praise for the manner in which Ms Bayat had conducted the disciplinary process [405].c. Dismissal within the range of responses of the reasonable employer. As alluded to above, we are entirely confident that dismissal in these circumstances was firmly within the range of reasonable responses test. We do so for the following reasons: i. The predatory, prolonged and serial nature of the serious sexual harassment by the Claimant of three colleagues. ii. The Claimant’s either inability or unwillingness to accept the nature of his actions and the serious effect it had upon all three complainants. iii. The power imbalance between the Claimant and the complainants, which he sought to exploit for his own gratification.d. Was dismissal procedurally fair? While, generally, the overall procedure followed by the Respondent was fair and was in compliance with the ACAS Code, their failure, as set out above, to disclose the safeguarding documents (and to a lesser extent, the impact statement), combined with the content and directive tone of those documents, was a very serious failure in procedure, sufficient, we consider, to render the dismissal procedurally unfair.e. The Application of the ‘Polkey’ principle. We concur with Mr Sellwood’s submissions on this point. The seriousness of the Claimant’s actions and his complete inability to accept that he had done anything wrong or to take responsibility for them, rendered his dismissal, even without any reference to safeguarding issues, inevitable. We are confident that had those ‘safeguarding’ documents never been prepared, or provided to the two decisionmakers, that their decisions would have been unchanged and indeed it seems entirely unfeasible to us that in the circumstances before them, of an employee serially sexually harassing three colleagues and refusing to accept his culpability for such that they could sensibly have come to any other decision, such as, for example, a final written warning. Such a decision, unaffected by the ‘safeguarding’ documents would have been inevitably a fair dismissal. We therefore find, applying Polkey and s.123(1) ERA that a 100% deduction is appropriate in this case. No submissions were made on this issue by the Claimant.f. Contributory Fault. Although unnecessary, in view of our Polkey finding, we would have found also, in any event that a 100% deduction in any compensation that might have been awarded would have been appropriate in this case, as being just and equitable in the circumstances. As submitted by Mr Sellwood “it is difficult to imagine a more clear-cut example of contributory conduct than the instant case. The Claimant behaved in a completely inappropriate way with multiple colleagues ... there is no place in the working environment for such behaviour.’ Again, we concur. Based on the evidence before us, particularly that of the three complainants and the equivocal and unreliable evidence of the Claimant, we find that he did commit the acts of misconduct he was accused of. That behaviour was, applying Nelson v BBC(No.2) [1980] ICR 110 CA, clearly culpable or blameworthy and which entirely caused or contributed to his dismissal (s.123(6) ERA), thus rendering the Claimant wholly to blame for his own dismissal. Again, no submissions were made on this point by the Claimant. Judgment[29]The Respondent unfairly dismissed the Claimant, however, applying the ‘Polkey’ principle a 100% deduction is made.[30]The Claimant’s claims of direct discrimination on grounds of sexual orientation are dismissed, upon withdrawal.