G Hancock and D Phillips v South Wales Fire and Rescue Service: 1602799/2023 and 1602819/2023
EMPLOYMENT TRIBUNALS
Case No 1602799/2023, 1602819/2023
Between
G Hancock and D PhillipsClaimantSouth Wales Fire and Rescue ServiceRespondent
Before
Employment Judge S PoveyMR POLLITT (instructed by COUNSEL) for claimantMISS WILLIAMS (instructed by COUNSEL) for respondentDate 29 August 2024
JUDGMENT
[1]The First Claimant’s complaint of unfair dismissal is made out and succeeds.[2]The Second Claimant’s complaint of unfair dismissal is made out and succeeds.
REASONS
[1]These are claims by Gareth Hancock (‘the First Claimant’) and Daniel Phillips (‘the Second Claimant) against their former employer, South Wales Fire and Rescue Service (‘the Respondent’). - 1 -[2]Both Claimants bring complaints that they were unfairly dismissed by the Respondent. The claims were issued separately but consolidated by the Tribunal on 13 March 2024. Following a case management hearing on 17 April 2024, case management directions were issued and a List of Issues agreed.[3]It was not in dispute that the Respondent dismissed the Claimants or that the reasons for those dismissals related to allegations of gross misconduct. However, the Claimants argued that the decisions to dismiss them were both substantively and procedurally unfair.[4]The claims related to the events of 2 June 2023 and the Respondent’s subsequent investigations and actions in response, which culminated with both Claimants being summarily dismissed for gross misconduct.
The Hearing
[5]In the course of the hearing, I heard evidence from each Claimant. For the Respondent, I heard from Dean Loader (Assistant Chief Fire Officer), and Alison Reed (People Services Director). I was provided with witness statements for all the witnesses that I heard from and a paginated bundle of documents (‘the Bundle’). During the course of the hearing, all those present (including myself) viewed material extracts of CCTV footage. In addition, and by agreement, a number of additional documents were adduced relating to the Second Claimant’s reversion.[6]Some of the evidence and CCTV footage referenced or showed a 16 year old. It was agreed by the parties (following a request by his parents) that he would be referred to throughout these proceedings by his initials (‘JC’). His mother, who is also referenced in the evidence, would be referred to by her initials (‘JCL’), so as to avoid identifying JC.[7]In addition, the First Claimant has subsequently been charged in respect of some of the allegations which formed the basis for his dismissal. As there was no complaint of wrongful dismissal, I was not required to make findings of fact on what actually happened. Rather, my task was to review the evidence gathered by the Respondent and decide whether it was reasonable for the Respondent to make the findings it did about the events of 2 June 2023.[8]As such, Mr Pollitt did not seek any adjournment of the proceedings, since it was not anticipated that the First Claimant would find himself in a position where he would need to consider his privilege against selfincrimination. Miss Williams for the Respondent helpfully indicated that she intended to test the First Claimant’s evidence in a manner which would not impact upon that privilege. - 2 -[9]Both counsel skilfully adhered to that prior agreement and we were able to conclude the oral evidence without infringing on the pending criminal proceedings. In addition, counsel and witnesses abided by the naming conventions in respect of JC and JCL.[10]I received written and oral submissions from Mr Pollitt for the Claimants and from Miss Williams for the Respondent. Due to lack of time, I reserved my decisions.[11]In reaching those decision, I had regard to the evidence I was provided with, the evidence I heard and the submissions I received. I also had regard to the applicable legal principles (which were not in dispute) and set out the relevant parts in respect of these claims. The Relevant Law Unfair Dismissal
The Relevant Law
[12]By virtue of Section 94 of the Employment Rights Act 1996 (‘ERA 1996’) an employee has the right not to be unfairly dismissed by her employer. In respect of what constitutes an unfair dismissal the relevant law is to be found within Section 98 of the ERA 1996.[13]Section 98(1) requires that in deciding whether a dismissal was unfair it is for the employer to show the reason for that dismissal. That reason must fall within a list of potentially fair reasons to be found within Section 98(2) of which subsection (2)(b) states: A reason falls within this subsection if it relates to the conduct of the employee. 7. Section 98(4) of ERA 1996 requires the Tribunal to consider whether the employer acted reasonably in dismissing the employee for one of the reasons in Section 98(2). In a conduct dismissal, the Tribunal is bound to consider the guidance issued by the Employment Appeals Tribunal in the Courts (including the decisions in British Home Stores Ltd v Burchell [1978] 379, Iceland Frozen Foods Ltd v Jones [1993] ICR 1, Post Office v Foley [2000] IRLR 827, Sainsbury’s Supermarkets v Hitt [2003] IRLR 23). 8. In particular, the case law requires me to consider four sub-issues in determining whether the decision to dismiss on the grounds of conduct was fair and reasonable: 8.1. Whether the employer genuinely believed that the employee had engaged in conduct for which he was dismissed; - 3 - 8.2. Whether they held that belief on reasonable grounds; 8.3. Whether in forming that belief they carried out proper and adequate investigations, and 8.4. Thereafter, whether the dismissal was a fair and proportionate sanction to the conclusions they had reached. 9. The burden of proving the reason for dismissal and that it had a genuine belief as to misconduct is on the employer. Thereafter, the remaining sub-issues, above, have a neutral burden (per Boys and Girls Welfare Society v Macdonald 1997 ICR 693, EAT, and Singh v DHL Services Ltd EAT 0462/12). 10. The extent and rigor of an employer’s investigations will, to a degree, be informed by seriousness of the allegations of misconduct which the employees are facing. The more serious the allegations, the greater care and rigor should be adopted by the employer, ensuring an even-handed approach to both the investigation and subsequent decision-making (per A v B [2003] IRLR 405). 11. The Tribunal must consider the reasonableness of the employer’s decision to dismiss and, in judging the reasonableness of that decision, the Tribunal must not substitute its own decision as to what was the right course to adopt for the employer. Rather, the Tribunal must consider whether there was a band of reasonable responses to the conduct within which one employer might reasonably take one view whilst another quite reasonably takes a different view. My function is to determine whether in the circumstances of the case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band it is fair. If it falls outside that band, it is unfair. 12. The Tribunal is also required to consider the fairness of the procedure that was followed by the employer in deciding to dismiss the employee. However, if the procedure followed was unfair, the Tribunal is not allowed to ask itself whether the same outcome (i.e. dismissal) would have resulted anyway, even if the procedure adopted had been fair (per Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL). 13. The requirement for procedural fairness includes consideration of the reasonableness of the decision to dismiss up to and including any appeal process undertaken (West Midlands Co-operative Society v Tipton 1986 ICR 192, HL).[14]Section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 includes the following provision (so far as relevant): - 4 - In any proceedings before an employment tribunal…any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal…to be relevant to any question arising in the proceedings shall be taken into account in determining that question.[15]ACAS has published a Code of Practice on disciplinary and grievance procedures (with an accompanying guide). The Code reinforces the requirement to deal with disciplinary issues fairly and transparently. It reminds employers that if a decision is taken to dismiss an employee on grounds of misconduct, “[T]he employee should be informed as soon as possible of the reasons for the dismissal (at Paragraph 22).[16]The accompanying guide includes the following, relevant extracts: 16.1. When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind Discipline and grievances at work 17 and look for evidence which supports the employee’s case as well as evidence against (at Page 16 – 17); 16.2. It is good practice to give written reasons for all dismissals (at Page 32); and 16.3. You should…inform the employee of the results of the appeal and the reasons for the decision and confirm it in writing (at Page 34) Findings of Fact The Complaints and Investigations13. The First Claimant was employed as a Firefighter from May 2014 until his dismissal on 3 August 2023.14. The Second Claimant was employed as a Watch Manager, having started his career with the Respondent as a Firefighter in February 2004. He was dismissed on 21 August 2023.15. At the relevant time, both Claimants were based at the Respondent’s Ebbw Vale fire station. 16. At the relevant time, the Respondent operated a Discipline Procedure, dated 13 December 2021 (at [714] – [752] of the Bundle). It covered the Respondent’s polices and procedures in respect of suspension, - 5 - investigation, disciplinary meetings and appeal meetings. The Respondent also operated a Standards & Expectations Policy, dated 14 December 2021, which included standards and behaviors expected of all employees (at [753] – [760]).
Findings of Fact
[17]The dismissals centered upon the events of the evening of Friday, 2 June 2023. The Claimants, along with Gareth Jones (another of the Respondent’s Watch Managers) and Luke Moreton (a fellow Firefighter) attended Yumee’s Chinese Takeaway (‘the takeaway’) in Tredegar, where they ordered food. Also with them and waiting outside in one of the Respondent’s vans was Tom Phillips, the Second Claimant’s brother (and also a Firefighter).[18]It was not in dispute that the Claimants, Mr Moreton and Mr Jones had been drinking in a local pub prior to arriving at the takeaway. In subsequent interviews, the First Claimant estimated that he had drunk about eight pints (at [234] of the Bundle) and the Second Claimant estimated that he had drunk six or seven pints (at [211]).[19]On 3 June 2023, the Respondent received a complaint from the takeaway owners regarding the alleged behavior of the Claimants, Mr Moreton and Mr Jones. In summary and as far as relevant to these claims, it was alleged that: 19.1. The First Claimant had urinated on the takeaway floor. 19.2. The First Claimant had made racist comments to and about the takeaway owners and members of their family. 19.3. The First Claimant had tried to start a fight. 19.4. None of the others present, including the Second Claimant, had done anything to stop or reprimand the First Claimant. In particular, the Second Claimant had been aware at the time that the First Claimant had urinated and made racist comments.[20]The takeaway owners were aware that the men were in the fire service because: 20.1. The owners’ son (JC), who served the men on the night of 2 June 2023, was in the Fire Cadets; 20.2. A Blue Light Card had been produced in order to obtain a discount on the cost of the food; and 20.3. The Second Claimant’s brother was waiting for the men outside the takeaway in one of the Respondent’s marked vans. - 6 -[21]Upon receipt of the complaints, the Respondent assigned Mike Wyatt (Group Manager) to visit the takeaway to gather more information and evidence. He attended at the takeaway later on 3 June 2023 and spoke with those who alleged to have witnessed the events of the previous evening, namely JC, JCL, Gareth Williams and Kelvin Williams (Mr Wyatt’s initial fact-finding report was at [184] – [187] of the Bundle). Given the allegations of racists comments by the First Claimant, the incident had also been reported to Gwent Police.[22]The takeaway owners shared with Mr Wyatt CCTV footage from the premises which had been recorded on the evening of 2 June 2023. Mr Wyatt filmed the relevant extract of the CCTV footage on his phone and that recording was both part of the investigation evidence and made available for these proceedings. Indeed, much of final hearing was spent viewing extracts from the CCTV recording.[23]The footage has no audio and moved between different cameras (of which four appeared to be recording). What was clear from the footage was that approximately 22 minutes elapsed from the time the Claimants, Mr Moreton and Mr Jones entered the takeaway and the time they left.[24]Following Mr Wyatt’s initial investigation of 3 June 2024, all four men, were suspended on full pay with effect from 4 June 2023. The First Claimant was informed of the following grounds for his suspension (at [176] of the Bundle): This decision is taken following a complaint recently received by the Service in relation to your alleged behaviour on 2nd June 2023, and contact from Gwent Police on 5th June 2023. The charges by Gwent Police are as follows:• criminal damage, indecent exposure and racial aggravation. It is considered that the above allegations, if proven, could adversely affect the performance of the contract of employment and the relationship between the Service and yourself.[25]The First Claimant was also arrested on 4 June 2023 by Gwent Police on suspicion of racially aggravated public disorder, indecent exposure and criminal damage. After being taken to Newport Police Station, where he was questioned, the First Claimant was released on police bail.[26]The Second Claimant was informed of the following grounds for his suspension (at [178] of the Bundle): This decision is taken following a complaint recently received by the Service in relation to your alleged behaviour on 2nd June 2023, and contact from - 7 - Gwent Police on 5th June 2023. The nature of the complaint is that you were involved in an incident at ‘Yumees Chinese Takeaway’ where the occupants were subject to racially motivated abuse. It is considered that the above allegations, if proven, could adversely affect the performance of the contract of employment and the relationship between the Service and yourself.[27]At the time of the events of 2 June 2023 and his subsequent suspension the Second Respondent was off work due to a broken finger.[28]On 5 June 2023, Mr Loader was made aware of the complaints, as he was responsible for allocating a Group Manager to deal with complaints (in his role as Head of Operations). Mr Loader initially allocated the case to Group Manager Steve O’Connell but on further consideration of the complaints, decided that they needed to be escalated to the Respondent’s resolution officers (per Paragraph 14 of Mr Loader’s statement and [181] of the Bundle).[29]Mr Wyatt provided an initial investigation report (at [188] – [202 of the Bundle) and the Respondent, via Ms. Reed, instructed Helen Couchman of Narrow Quay HR to undertake its formal investigation into the allegations. In particular, Ms. Couchman was instructed to interview the Claimants, Mr Moreton and Mr Jones (per Paragraph 13 of Ms. Reed’s witness statement).[30]The First Claimant was interviewed on 7 June 2023 (the transcript was at [209] – [219] of the Bundle). The Second Claimant was interviewed on 28 June 2023 (at [230] – [247]). Interviews were also undertaken on 28 June 2023 with Mr Jones (at [248] – [260]) and Mr Moreton (at [261] – [279]). The Claimants had been informed in advance of their right to be accompanied and all four men attended their respective interviews with trade union representatives.[31]It was not in dispute that, at the time of their interviews, none of the employees had been permitted to view the CCTV footage.[32]JC, JCL, Gareth Williams and Kelvin Williams were interviewed by Chris Hadfield (Duty Manager) and Mr Wyatt on 4 July 2023 (the transcripts of all four interviews were at [280] – [301] of the Bundle, albeit JC’s interview was duplicated and erroneously titled, at [289] – [290]). Investigation Recommendations & Disciplinary Hearing: The First Claimant[33]By her investigation report of 17 July 2023 (at [318] – [337] of the Bundle), Ms. Couchman recommended that the allegations against First Claimant be considered further at a disciplinary hearing (per the - 8 - Executive Summary, at [320] – [321]). Those allegations were as follows (Paragraph 1.7, at [320], emphasis retained): 1.7 The allegation can be summarised as follows:2.7.1 Allegation 1: That on 2 June 2023 [the First Claimant] was involved in an incident at Yumee's Chinese takeaway, where he was racially abusive to the proprietors of the establishment.2.7.2 Allegation 2: That [the First Claimant] urinated inside Yumee's Chinese takeaway during the incident.2.7.3 Allegation 3: That [the First Claimant] attempted to initiate a fight with an individual who witnessed the events of the evening.2.7.4 Allegation 4: That [the First Claimant’s] behaviour has fallen short of the behavioural standards expected by [the Respondent].[34]By a letter dated 19 July 2023, the Respondent invited the First Claimant to a disciplinary meeting, scheduled for 3 August 2023 (at [307] – [308] of the Bundle). That invitation informed the First Claimant of his right to be accompanied, enclosed the investigation evidence, informed him of his right to rely on documentation and call witnesses and made him aware that the outcome of the meeting could include dismissal. The invitation also included the following regarding the allegations faced by the First Claimant (at [308], emphasis retained): The purpose of the meeting will be to discuss the allegation of misconduct made against you. The specific allegation made against you is that of: Criminal damage, indecent exposure and racial aggravation.[35]A disciplinary panel was convened by the Respondent. It was chaired by Mr Loader. The other members of the panel were Mr O’Connell and Lisa Shroll (Head of People Services). The membership of the panel was determined by Ms. Reed.[36]The First Claimant’s disciplinary hearing took place on 3 August 2023, as planned (the transcript was at [415] – [455] of the Bundle). He attended with his trade union representative. Although the First Claimant had been provided with access to the CCTV footage, he was concerned that he had not have sufficient time to consider it. As such, the hearing was adjourned to allow him to view it further (at [453]). The First Claimant was given an opportunity to address the panel on the allegations against him and the evidence relied upon by the Respondent. He provided the panel with additional documentary evidence in support of his case (see, for example, Paragraph 33 of Mr Loader’s witness statement). The First Claimant did not call any witnesses of his own, - 9 - although he believed that other people should have been spoken to as part of the investigation (including Tom Phillips, the Second Claimant’s brother, at [444] of the Bundle).[37]At the conclusion of the hearing, the panel adjourned again to deliberate and then reconvened to inform the First Claimant of their decision. The panel concluded that all four allegations had been proven, that the First Claimant’s actions constituted gross misconduct and that, as a consequence, the decision was made to dismiss him without notice (at [454] – [455] of the Bundle). Other than finding that the allegations were proven, no reasons for the panel’s decisions were provided. However, the First Claimant was informed that he would be written to with confirmation of the panel’s findings.[38]By a letter dated 9 August 2023, the Respondent confirmed the panel’s decision in writing (at [460] – [463] of the Bundle). The written decision did contain some explanation for the panel’s findings but these were somewhat cursory in nature. In effect, the panel did not accept the First Claimant’s “explanation for the events” although the letter did not explain why those explanations had not been accepted. In respect of Allegation 1 (that of racial abuse), the panel also appeared to take account of the fact that the First Claimant had admitted to some actions (swinging on the door and banging the counter), albeit those actions were not the subject of any of the specific allegations relied upon by the Respondent.[39]The letter informed the First Claimant of his right of appeal, which he exercised by way of an email and attached letter to Ms. Reed on 17 August 2023 (at [468] - [469] of the Bundle) Investigation Recommendations & Disciplinary Hearing: The Second Claimant[40]By her investigation report of 24 July 2023 (at [341] – [357] of the Bundle), Ms. Couchman recommended that the allegations against Second Claimant be considered further at a disciplinary hearing (per the Executive Summary, at [343] – [344]). Those allegations were as follows (Paragraph 1.7, at [343], emphasis retained): 1.7 The allegation can be summarised as follows:1.7.1 Allegation 1: That on 2 June 2023 [the Second Claimant] was involved in an incident at Yumee's Chinese takeaway, where the proprietors were racially abused.1.7.2 Allegation 2: That [the Second Claimant’s] behaviour has fallen short of the behavioural standards expected by [the Respondent]. - 10 -[41]Specifically, Ms. Couchman reached the following conclusions regarding the Second Claimant and Allegation 1, above (Paragraph 1.10.1, at [342] of the Bundle, emphasis retained and with erroneous reference to Allegation 2): Allegation 2 [sic]: I do not find evidence to support that [the Second Claimant] was racially abusive during the incident and consider there is not a case to answer. However, I find that there is a case to answer in relation to [the Second Claimant’s] reaction to the racial abuse. I find that [the Second Claimant] was present during the incident at Yumee's Chinese Takeaway on 2 June 2023. On the balance of probabilities, I find that [the Second Claimant] was not racially abusive to the proprietors of the takeaway, however I do find that he witnessed the abuse and laughed at his colleague's behaviour towards the proprietors and took footage on his phone.[42]By a letter dated 2 August 2023, the Respondent invited the Second Claimant to a disciplinary meeting, scheduled for 21 August 2023 (at [376] – [378] of the Bundle). That invitation similarly informed the Second Claimant of his right to be accompanied, enclosed the investigation evidence, informed him of his right to rely on documentation and call witnesses and made him aware that the outcome of the meeting could include dismissal. The invitation also included the following regarding the allegations faced by the Second Claimant (at [377], emphasis retained): The purpose of the meeting will be to discuss the allegation of misconduct made against you. The specific allegation made against you is that: You were involved in an incident at ‘Yumees Chinese Takeaway’ where the occupants were subject to racially motivated abuse[43]The Second Claimant’s disciplinary hearing took place on 21 August 2023 (the transcript was at [470] – [488] of the Bundle). He similarly attended with his trade union representative. The same panel that had determined the First Claimant’s disciplinary hearing presided over the Second Claimant’s hearing. As detailed above, by the time of the Second Claimant’s hearing, that panel had already determined that the First Claimant had urinated on the take away floor, made racist comments, tried to instigate a fight and failed to uphold the Respondent’s expected standards of behavior.[44]In addition, and as detailed below, the same panel had also made the following findings, ahead of the Second Claimant’s disciplinary hearing: 44.1. That the allegations against Mr Moreton were proven and constituted gross misconduct, for which he was dismissed; and - 11 - 44.2. The allegations against Mr Jones were not proven. In particular, the panel had accepted Mr Jones’ evidence that he had not seen and was not aware that the First Claimant had urinated on the floor and had not heard the First Claimant make any racist comments (such that, in the panel’s view, Mr Jones could not be criticized for failing to intervene in events of which he was, at the time, unaware).[45]The Second Claimant was given an opportunity to address the panel on the allegations against him and the evidence relied upon by the Respondent. He provided the panel with additional character references (see, for example, Paragraph 46 of Mr. Loader’s witness statement). The Second Claimant did not call any witnesses of his own.[46]At the conclusion of the hearing, the panel adjourned to deliberate and then reconvened to inform the Second Claimant of their decision. The panel concluded that both allegations had been proven, that the Second Claimant’s actions constituted gross misconduct and that, as a consequence, the decision was made to dismiss him without notice (at [486] – [488] of the Bundle). Other than finding that they had a reasonable belief that the allegations were proven, no reasons for the panel’s decisions were provided. As with the First Claimant’s case, the Second Claimant was informed that he would be written to with confirmation of the panel’s findings.[47]By a letter dated 1 September 2023, the Respondent confirmed the panel’s decision in writing (at [492] – [494] of the Bundle). The written decision did not materially elaborate on the decisions reached by the panel. In essence, the Second Claimant was informed of what the panel reasonably believed but not how or why they had reached those beliefs.[48]The letter informed the Second Claimant of his right of appeal, which he exercised by way of an email to Ms. Reed on 2 September 2023 (at [495] of the Bundle). Investigation Recommendations & Disciplinary Hearing: Mr Jones & Mr Moreton[49]Ms. Couchman’s investigation report of 26 July 2023 in respect of Mr Jones was also in evidence (at [360] – [375] of the Bundle). She found no case to answer regarding the two allegations against Mr Jones (allegations which were identical to those investigated against the Second Claimant and set out above) and provided her reasoning (Paragraph 1.10, at [362] of the Bundle). There was a recommendation that Mr Jones be “given strong guidance in relation to his responsibilities as Watch Manager, to adhere to the Service Values of [the Respondent] whilst off duty, particularly trust and confidence of the community” (Paragraph 1.11, at [363]). - 12 -[50]Notwithstanding Ms. Couchman’s findings and recommendations, the Respondent instigated a formal disciplinary hearing against Mr Jones. A disciplinary hearing was also convened for Mr Moreton.[51]The disciplinary hearings for Mr Jones and Mr Moreton were heard by the same panel as determined the First and Second Claimants’ disciplinary hearings, chaired by Mr Loader. It was not in dispute that the four cases were heard and determined separately. It was suggested by Mr Pollitt (and was not challenged by the Respondent) that the order of the disciplinary hearings and decisions were as follows: 51.1. The First Claimant 51.2. Mr Moreton 51.3. Mr Jones 51.4. The Second Claimant[52]The allegations against Mr Moreton were upheld and he was dismissed for gross misconduct (per Paragraph 51 of Mr Loader’s witness statement). However, the panel concluded that there was no case to answer against Mr Jones and that disciplinary action against him was not appropriate. After considering the CCTV footage, the investigation report of Ms. Couchman and the answers provided by Mr Jones at his disciplinary hearing, Mr Loader’s written evidence was as follows (per Paragraph 52 of his witness statement): …We were satisfied that the evidence given by Mr Jones was honest and that he had not supported or actively encouraged the inappropriate behaviour of his colleagues. We also concluded that he had not heard the racial abuse from the First Claimant that was directed to the proprietors of the Takeaway. The Appeal Process[53]The Respondent’s Discipline Procedure detailed the processes to be followed on appeal (Paragraph 7.2, at [724] – [725] of the Bundle and Appendix 8, at [742] – [743]). The permitted grounds of appeal were set out at Paragraph 7.2.2, as follows (at [724]): Employees may appeal on one or more of the following grounds, which must be clearly stated when lodging their appeal:• They think a finding or penalty is unfair or unreasonably harsh.• New evidence has come to light.• They think that the discipline procedure was not used correctly. - 13 -[54]Appendix 8 provided further details of the appeal process. So far as relevant, it included the following as to the scope of the appeal and the powers of the appeal panel (at [742] of the Bundle); The Appeal Meeting is not a re-hearing of the Disciplinary Meeting, but rather a consideration of the specific area with which you are dissatisfied in relation to the outcome of the original meeting. The Appeal Panel will therefore confine discussion to those specific areas rather than reconsider the whole matter afresh. The only exception to this shall be where new evidence has come to light, which may require a re-hearing of the evidence.[55]In effect, the Respondent afforded a discretion to the appeal panel to undertake a full re-hearing of the case if new evidence came to light.[56]In her oral evidence, Ms. Reed said, in terms, that the appeal panel conducted reviews, rather than re-hearings, in respect of both Claimants. In particular, Ms. Reed confirmed that, notwithstanding the Second Claimant referencing ‘new evidence’ in his grounds of appeal, the panel still conducted a review rather than a re-hearing, because the material presented did not “change the original decision.”[57]The Claimants’ appeals were heard by the same panel, albeit a different panel to the one that had decided the disciplinary hearings. That was also the case with Mr Moreton, who had appealed against his dismissal. The appeal panel was chaired by Dewi Rose, Director of Service Delivery at the time. The other panel members were Geraint Thomas (Director of Corporate Services) and Ms. Reed.[58]On 5 September 2023, and prior to the appeal hearings, the Claimants and Mr Moreton lodged a collective grievance against Mr Wyatt and Ms. Couchman (at [533] – [534] of the Bundle). It was proposed that the issues raised in the grievances (which went to the investigation process underpinning the disciplinary decisions) would be considered and determined as part of the respective appeals (per Ms. Reed’s letter of 11 September 2023, at [536]). The First Claimant’s Appeal[59]In his appeal letter of 17 August 2023, the First Claimant raised three grounds of appeal (at [469] of the Bundle). In summary, these were: 59.1. Issues with the disciplinary procedure; - 14 - 59.2. That the sanction of dismissal was too harsh when compared to other cases; and 59.3. Issues with how the evidence had been considered and an indication that the First Claimant had further evidence which he wished to be taken into consideration.[60]By a letter dated 25 September 2023, the First Claimant was invited to the hearing of his appeal, scheduled to take place on 9 October 2023 (at [537] – [538] of the Bundle). The First Claimant was informed of his right to be accompanied and his right to submit any further information which he wished to rely upon.[61]On 2 October 2023, the First Claimant emailed further documents in support of his appeal (at [544] – [562] of the Bundle). The appeal hearing took place on 9 October 2023, as proposed (a transcript of the hearing was at [573] – [600]). The First Claimant was given the opportunity to present his case. He answered questions put to him by the panel. It was agreed, at the conclusion of the hearing, that the panel’s decision would be sent to the First Claimant in writing.[62]By a letter dated 9 October 2023, the panel informed the First Claimant that his appeal had been unsuccessful (at [ 601] – [605] of the Bundle). The panel supported the findings of the disciplinary panel and upheld the four allegations against the First Claimant. The panel also upheld the decision to dismiss the First Claimant.[63]The appeal decision letter recited the First Claimant’s grounds of appeal and set out what it had decided in respect of each of them. The letter also recited questions asked of the panel during the hearing and its conclusions on those questions. Finally, the letter set out the panel’s conclusions in respect of the four allegations which had been found to be proven by the disciplinary panel. The appeal panel stated that it found the same allegations to be made out.[64]However, the appeal panel did not explain in the letter of 9 October 2023 how it had reached its various conclusions, what evidence had informed those conclusions or how it assessed and weighed the evidence. In short, whilst the First Claimant was told what the appeal panel had decided, he was not told why.[65]With respect, the reasons for the appeal panel’s decision were not amplified in Ms. Reed’s written evidence to the Tribunal. At Paragraph 32 of the her witness statement, she alluded to having “the impression that [the First Claimant] was not being honest with us” but provided no further detail and nor was that “impression” referred to anywhere in the appeal outcome letter of 9 October 2023. At Paragraph 33 of her - 15 - statement, Ms. Reed repeated that “the Panel concluded that it was reasonable to uphold the findings of the Disciplinary Panel that each allegation was proven on the balance of probabilities”, without explaining why or how the appeal panel had reached those conclusions. The Second Claimant’s Appeal[66]By a letter dated 25 September 2023, the Second Claimant was invited to the hearing of his appeal, scheduled to take place on 30 October 2023 (at [539] – [560] of the Bundle). He was similarly informed of his right to be accompanied and his right to submit any further information which he wished to rely upon.[67]The Second Claimant provided an indexed bundle of documents in support of his appeal (at [606] – [613] of the Bundle). The bundle included written submissions from the Second Claimant, evidence he wished to rely upon and details of other employees who he alleged had been dealt with less severely than him, whilst being found guilty of conduct which was, in the Second Claimant’s view, either comparable to or more serious than had been found against him.[68]The appeal hearing took place on 30 October 2023, as proposed (a transcript of the hearing was at [614] – [668] of the Bundle). The Second Claimant was given the opportunity to present his case. He raised a number of issues, including the treatment of those he contended to be appropriate comparators. It was agreed, at the conclusion of the hearing, that the panel would reconvene on 8 November 2023 and provide their decision to the Second Claimant.[69]On 8 November 2023, the appeal panel reconvened and read out its decision to the Second Claimant. A copy of that decision was also provided in writing (at [669] – [674] of the Bundle). The panel supported the findings of the disciplinary panel and upheld the two allegations against the Second Claimant. The panel also upheld the decision to dismiss the Second Claimant.[70]The appeal decision letter recited the Second Claimant’s grounds of appeal, which the panel considered under what it described as “three broad headings”, pertaining to procedure, outcome and new evidence. The letter set out the panel’s conclusions under each heading.[71]As detailed above, the Second Claimant had provided details of other disciplinary cases which he relied upon to show that he had been treated more harshly than others. The letter of 8 November 2023 included the following explanation of what the panel had done in respect of those other cases relied upon (at [671] of the Bundle): - 16 - To have a full understanding of why the cases you outlined demonstrated your sanction was unduly harsh, the Appeal Panel sought further information in relation to some of the more recent cases and the rationale for the decisions made by the respective disciplinary panels. On reviewing the further information, the Appeal Panel were satisfied with the decisions made by those Panels. The Appeal Panel also noted some of the cases you outlined are live cases and it would be inappropriate for the Panel to comment on these. The Appeal Panel recognises the Service will deal with a range of disciplinary issues where some may consider them to be similar cases with different outcomes. However, it must be acknowledged that each case is different and has been dealt with on its own merits. It is only the disciplinary panel who hold all the facts of each case and their decision is based on these facts.[72]No further details were provided as to which cases had been considered nor why the panel were satisfied with the decisions made in those cases. Importantly, the decision letter did not explain what conclusions, if any, the panel had reached as to whether or not the Second Claimant’s allegation that he had been treated more harshly than others had been made out or, if it had not been made out, why not.[73]In considering the new evidence relied upon by the Second Claimant, the letter detailed what the panel considered and what it had decided. It did not explain how or why it had reached those conclusions.[74]In his written appeal submissions, the Second Claimant included a section headed ‘Service Issues’ (at [505] – [508] of the Bundle). This included various submissions regarding the procedures followed by the Respondent in the investigation and disciplinary process. It included a number of questions posed by the Second Claimant, some of them containing allegations, others seeking further information.[75]In the appeal outcome letter, the Respondent informed the Second Claimant of the following (at [672] of the Bundle): The Appeal Panel has reviewed all the points you raised under the heading “Service Issues”, a number of which have already been covered in this letter. A number of these are very detailed and as a result, the Appeal Panel will provide a more detailed response to these in a separate letter which will be forwarded to your home address.[76]By another letter dated 8 November 2023 to the Second Claimant, Mr Rose (as chair of the appeal panel) wrote as follows (at [675] of the Bundle): - 17 - Further to your appeal outcome letter dated 8 November 2023, this letter sets out the Service’s response to the list of concerns you raised under the heading ‘Service Issues’.[77]Annexed to the letter were those responses (at [676] – [687] of the Bundle). In respect of the issues and concerns raised by the Second Claimant as to the disciplinary investigation and hearing, the Respondent’s response was that it was “content that a fair and through investigation has been carried out” and “content that the discipline hearing was fair and thorough and the Discipline Panel conducted their role impartially and in a professional manner” (see, for example, at [681] – [685]). However, the Respondent did not explain how or why it had reached those conclusions and failed to explain how it had addressed the specific issues being raised by the Second Claimant. Rather, it deployed these stock answers without further explanation or reasoning.[78]The appeal panel did not explain in its letters of 8 November 2023 how it had reached its various conclusions, what evidence had informed those conclusions or how it assessed and weighed the evidence. As had been the case with the First Claimant, the Second Claimant was told what the appeal panel had decided but was not told why.[79]There was a similar lack of explanation or amplification in Ms. Reed’s written evidence to the Tribunal. At Paragraph 35 of the her witness statement, she recalled that she “was not persuaded in the appeal meeting that the Second Claimant was being truthful about what had happened in the Takeaway” but provided no further detail and nor was that conclusion referred to anywhere in the appeal outcome letters of 8 November 2023. At Paragraph 36 of her statement, Ms. Reed stated that “there were not sufficient grounds to uphold the Second Claimant’s grounds of appeal…on the balance of probability the evidence supported the Disciplinary Panel’s decision”, without explaining why or how the appeal panel had reached those conclusions.[80]As with the disciplinary hearings and decisions, by the time of the Second Claimant’s appeal, the same appeal panel had already reached its conclusions on the First Claimant’s appeal. Analysis &
Conclusions
[81]In my judgment, there were significant and fundamental flaws in how the Respondent conducted and determined the disciplinary proceedings against both Claimants.[82]First of these was the choreography of the disciplinary and appeal hearings. The same panels were convened for each disciplinary hearing and each appeal hearing. The disciplinary panel considered the - 18 - evidence and reached findings in respect of each of the four employees against whom charges had been brought. The appeal panel considered and determined the appeals of the three employees against whom disciplinary findings and sanctions were made (Mr Jones did not bring an appeal, as he was cleared of the charges against him by the disciplinary panel).[83]The allegations against the Claimants, Mr Jones and Mr Moreton arose from the same factual nexus. The primary source of the allegations against them was the same, namely the statements of the takeaway owners and staff, and the CCTV footage. The allegations against them and their responses to those allegations were inextricably linked.[84]The disciplinary panel heard and decided each case sequentially. It was not compelled or mandated to do so. It had the option of hearing all the cases at the same time and then reaching its decisions. In the alternative, it could have postponed making any decisions on the individual cases until it had concluded the sequential hearings. Instead, it chose to determine each case immediately after the respective hearings concluded.[85]As noted above, the disciplinary panel heard and decided the cases in the following sequence: 85.1. The First Claimant 85.2. Mr Moreton 85.3. Mr Jones 85.4. The Second Claimant[86]That sequential decision-making had the following, material consequences: 86.1. When deciding the First Claimant’s case, the disciplinary panel had yet to conclude that Mr Jones had not heard any racist comments being uttered by the First Claimant nor seen or been aware that the First Claimant had urinated on the shop floor. Mr Jones’ evidence that he had not heard any racist language and had neither seen nor been aware of any urination was, on any reasonable basis, relevant and material evidence that supported the First Claimant’s denials of those allegations. As a result of the decision to both hear and decide the cases sequentially, the Respondent denied both its own panel and the First Claimant of the opportunity to take those findings regarding Mr Jones into account. - 19 - 86.2. In addition, when deciding the case against the First Claimant, the disciplinary panel had yet to reach decisions on whether or not the Second Claimant’s defence to the charges against him had been found proven. The Second Claimant’s defence to the charges were, in terms, similar to that of Mr Jones, namely that he had not seen the First Claimant urinate and had not heard him make any racist comments. 86.3. By the time the disciplinary panel came to hear and decide the Second Claimant’s case, it had already made the following, relevant findings: 86.3.1. That the First Claimant had urinated on the shop floor, had made racists comments to the takeaway staff and had tried to instigate a fight; 86.3.2. That Mr Jones had not heard any racist comments and had not seen or been aware that the First Claimant had urinated on the shop floor (it was not in dispute that Mr Jones had been out of the shop when it was alleged that the First Claimant tried to instigate a fight). 86.4. It followed that the Second Claimant was placed at a material disadvantage, in that his defence to the allegations (that he had not seen or heard anything untoward by the First Claimant, which was why he had had no need to intervene) was, to an extent, prejudged. The charges against him had, in real terms, changed. The starting point for the disciplinary panel was that the First Claimant had urinated, had made racist remarks and had tried to instigated a fight. Against those findings, the Second Claimant was faced with a very different landscape which he had been denied any opportunity to challenge. In simple terms, the disciplinary panel, having already decided the First Claimant’s guilt, were left to conclude whether it was plausible that the Second Claimant would not have seen his colleague urinating, not heard his offensive comments and not witnessed him trying to start a fight. That placed the Second Claimant at a disadvantage and resulted in his case being approached with a partially closed mind on the part of the panel.[87]Despite those flaws in the disciplinary panel’s decision making process, it remained open to the appeal panel to address them and ensure that all the relevant evidence was considered in an even-handed and fair manner. It had the power to conduct full re-hearings, to decide on the manner in which it conducted the appeal hearings and to reserve any decisions until it had seen and heard all the relevant evidence. - 20 -[88]Unfortunately, the appeal panel did not take that opportunity. As noted above, it too conducted sequential appeal hearings and reached sequential appeal decisions. In effect, it fell into the same error as the disciplinary panel, determining the First Claimant’s appeal before hearing and deciding the appeal by the Second Claimant.[89]The second flaw in the Respondent’s disciplinary process was the wholesale absence of any meaningful reasons for the various findings and decisions which were reached. As set out above, the Respondent informed the Claimants of what it had decided, both at the disciplinary stage and on appeal. The Claimants were made aware of the conclusions reached by the respective panels. But they were not told, either sufficiently or at all, how or why those conclusions had been reached.[90]This, again, had a number of unfortunate consequences.[91]In respect of the disciplinary panel: 91.1. The Respondent was unable to explain how, if at all, it had considered and determined the alleged inconsistencies in the evidence which were raised by the Claimants in their written and oral submissions; 91.2. The Respondent was unable to explain how, if at all, it had considered and determined the alleged inconsistencies in the Claimants’ evidence, including how it had weighed the fact that none of the employees had had sight of the CCTV footage when they were interviewed in the course of the investigation process; 91.3. The Respondent failed to explain how it had weighed the competing accounts it was faced with and why it had preferred the evidence of the take away owners and staff over that of the Claimant, Mr Jones and Mr Moreton; 91.4. The Respondent failed to explain how it had weighed the CCTV footage and reached the conclusions it did, particularly in respect of the allegation of urination; 91.5. The Respondent was unable to explain how, if at all, it had weighed the findings that led to Mr Jones being believed and exonerated in determining the case against the Second Claimant; and 91.6. The Respondent was unable to explain how, if at all, it had approached the First Claimant’s case, mindful of the fact that it had yet to hear the other employees cases and yet to reach conclusions on their responses to the interlinked allegations. - 21 -[92]In respect of the appeal panel: 92.1. The Respondent was unable to explain whether, if at all, any consideration had been given to the apparent flaws in the disciplinary process and how those could or should be addressed on appeal; 92.2. The Respondent failed to explain why it believed that the disciplinary process up to that point had been fair and transparent; 92.3. The Respondent failed to explain how it had weighed the evidence and submissions it received from the Claimants; and 92.4. The Respondent failed to explain how, if at all, it had weighed the disciplinary panel’s decision to believe Mr Jones and exonerate him of all charges but still find the same allegations proven against the Second Claimant.[93]The absence of reasons and the explanations for the points highlighted above were not materially expanded upon in the evidence of either Mr Loader or Ms. Reed. To the extent that they did, these were after the event explanations and not reflected in the decisions communicated to the Claimants at the time (nor were they contained within either witnesses’ written evidence to the Tribunal).[94]In fact, the lack of proper reasoning did not just leave the Claimants unaware of why or how the decisions to dismiss them had been reached. The lack of transparency also affected the appeal panel.[95]In his oral evidence, Mr Loader claimed that the disciplinary panel had concluded that there had been insufficient evidence to conclude that the Second Claimant had heard one of the two alleged racist comments made by the First Claimant (the so-called ‘rice comments’). As such, that allegation was not made out. There was no indication of that in the disciplinary panel’s decision when it was given orally to the Second Claimant or in the letter of 9 November 2023. The Second Claimant was wholly unaware at the time that his defence had, in part, been accepted (or that the disciplinary panel had found his account to be consistent with that of Mr Jones, who similarly was found not to have heard the ‘rice comments’).[96]In her oral evidence, Ms. Reed stated that the appeal panel concluded that the Second Claimant had heard the ‘rice comments’. Again, this was not indicated in the appeal panel’s decision letter and only came to light in the course of these proceedings. It appeared to arise, in part, from the - 22 - fact that the appeal panel itself were unaware of the details of the disciplinary panel’s decision.[97]The result was that the Second Claimant was partially cleared of the allegations against him, was not made aware of that fact and then found guilty of the very same allegation on appeal, in circumstances where the appeal panel was similarly unaware of the disciplinary panel’s reasoning.[98]In addition, the First Claimant was never afforded the opportunity to rely on the fact that two of his three colleagues in the take away were found to have not heard him make the ‘rice comments’.[99]As confirmed by Ms. Reed in her oral evidence, the appeal panel were conducting a review of the decisions of the disciplinary panel in respect of the Second Claimant. That was a difficult task to undertake in circumstances where the disciplinary panel had failed to provide sufficient reasoning for its findings. It was not suggested that the appeal panel made any enquiries of the disciplinary panel, by way of seeking clarification or amplification of its reasoning. As such, it was difficult to see how any review could be effective or meaningful in circumstances where there was no adequate explanations for why or how the disciplinary panel had reached its decisions.[100]There was another consequential error by the appeal panel, which arose from the lack of transparency. If the appeal panel was undertaking a review of the disciplinary panel’s findings and decisions, its powers were prescribed by the Respondent’s Discipline Policy, which stated as follows (at [742] of the Bundle): The Appeal Meeting is not a re-hearing of the Disciplinary Meeting, but rather a consideration of the specific area with which you are dissatisfied in relation to the outcome of the original meeting. The Appeal Panel will therefore confine discussion to those specific areas rather than reconsider the whole matter afresh.[101]Although he was unaware of the disciplinary panel’s finding that he had not heard the ‘rice comment’, it was reasonable to infer that, had he been so aware, the Second Claimant would not have been “dissatisfied” with that finding. It was therefore outside the appeal panel’s remit to consider that “specific area”, still less overturn the disciplinary panel’s findings and reach its own, adverse, decision.[102]Finally, both Claimants’ questioned the involvement of Mr Loader and Ms. Reed in the disciplinary and appeal procedures. Mr Loader had been made aware of the complaints against the firefighters from the outset and had liaised with both Mr Wyatt and Mr O’Connell during the investigation phase (see, for example, at [168] & [222] of the Bundle). - 23 - Ms. Reed commissioned and instructed Narrow Quay HR to undertake the formal investigation, wherein she also directed them on who to interview and suggested lines of questioning. Ms. Reed was also the investigator’s point of contact (per the letter of instruction of 6 June 2023, at [203] – [206] of the Bundle).[103]It was submitted by Mr Pollitt that, given the size of the Respondent, it could have easily arranged disciplinary and appeal panels that had no connection, innocent or otherwise, with the investigative process. Instead, the involvement of both Mr Loader and Ms. Reed raised concerns as to impartiality.[104]In response, Miss Williams submitted that there was no merit in the objections being raised. She referred to Mr Loader’s evidence that his involvement in the earlier stages of the investigation had been, in effect, administrative and he had played no part in the any aspects of the actual investigations themselves. He was, therefore, sufficiently impartial to chair the disciplinary panel. Similarly, whilst Ms. Reed had more involvement in commissioning the investigation (both internally and externally), she again had not involvement in the investigation themselves or the recommendations which arose from them.[105]I agreed with Miss Williams so far as Mr Loader’s prior involvement was concerned. It was reasonably clear from the evidence that his interaction and involvement when the complaints from the take away were received was purely administrative and did not, without more, raise the risk or create the impression that his ability to conduct and determine the disciplinary meetings was compromised.[106]However, I was unable to reach a similar conclusion in respect of Ms. Reed. Her prior involvement was more substantial than Mr Loader. In particular, she instructed and, to a degree, directed the remit of the external investigation (per her letter of instruction to Narrow Quay HR, referred to above). That prior involvement was not necessarily fatal to Ms. Reed’s subsequent role on the appeal panel. However, at the very least, it raised a query over her impartiality which, in my judgment, she was required to answer and address. That required evidence that Ms. Reed had approached her task on the appeal panel with an open mind and not been swayed or affected by the active role she had taken in the investigation process.[107]Unfortunately, as found above, the appeal panel (like the disciplinary panel) failed to provide any meaningful reasons or explanations for its decisions. It was therefore not possible to consider and determine whether, how or in what way Ms. Reed had ensured that her prior involvement in the investigation into these allegations had played no part in her analysis, consideration and decision-making on appeal. - 24 -[108]For those reasons, I concluded that, faced with the same information, the ordinary bystander would have concluded that there was a risk of bias in Ms. Reed’s involvement in the appeal stage of the disciplinary process, given the role she had played in the investigation stage.[109]In light of those significant flaws in the Respondent’s disciplinary processes, I went on to determine whether the decisions to dismiss the Claimants had been substantively and procedurally fair. Substantive & Procedural Fairness: The First Claimant Substantive Fairness[110]It was not suggested by Mr Pollitt that the Respondent did not believe that the First Claimant had committed the conduct of which he was accused. However, it was contended that such a belief was not held on reasonable grounds and was the product of investigations which were not sufficient.[111]In my judgment, there was insufficient evidence to conclude that the Respondent’s belief that the First Claimant had urinated, made racist remarks or tried to instigate a fight, as alleged, was reasonably held. The decision making procedures detailed above rendered those findings of fact about the events of the evening of 2 June 2023 flawed and unreliable. A reasonable employer would have been alive and alert to those flaws and addressed them before reaching its decisions.[112]The disciplinary panel had no regard to its own findings that neither the Second Claimant nor Mr Jones heard the ‘rice comments’, since it only made those findings after it had determined the First Claimant’s case, (wherein it found the allegations proven and dismissed him). It similarly had no regard to its own findings that Mr Jones had not seen the First Claimant urinating and had not been aware of any urination.[113]These were highly material, relevant findings which, because of the decision to consider and decide the cases sequentially, could not be considered in determining the case against the First Claimant.[114]Those failings were all the more pertinent given that credibility was a key factor in the Respondent’s decisions. Both Mr Loader (at Paragraph 34 of his statement) and Ms. Reed (at Paragraph 32 of her statement) recalled that both panels did not think that the First Claimant was being honest. The disciplinary panel had precluded its ability to take account of seemingly corroborative evidence (of the Second Claimant and Mr Jones) by its sequential approach. The appeal panel was not so precluded but failed to have any regard, proper or otherwise, to the fact - 25 - that the First Claimant’s account was found to be consistent with at least two other witnesses to the events in question. (indeed, as detailed above, the appeal panel went as far as to reverse the disciplinary panel’s finding in respect of the Second Claimant and the ‘rice comments’).[115]In addition, because of the wholesale failure to provide any adequate reasoning for the various findings, conclusions and decisions reached by both the disciplinary and the appeal panels, it is impossible to know why or how the Respondent weighed the evidence and reached the belief that the First Claimant was guilty of the conduct alleged. That absence of transparency masked any meaningful finding as to whether the belief held by the Respondent was objectively reasonable. In terms, I simply do not know.[116]I was less persuaded that the Respondent’s investigation into the allegations against the First Claimant was insufficient or not reasonable in the circumstances. Evidence was gathered from the take away owners and staff. A copy was made of the relevant CCTV footage. This was done in the immediate aftermath of the events under investigation. Thereafter, an independent third party was brought in to conduct a fuller investigation, which included undertaking interviews with the Claimants, Mr Jones and Mr Moreton.[117]For those reasons, I found that the Respondent conducted reasonable and adequate investigations into the allegations against the First Claimant. However, as detailed above, the manner in which the Respondent thereafter considered and determined those allegations was flawed.[118]For all those reasons, the Respondent’s decision to dismiss the First Claimant for gross misconduct was based upon proper and adequate investigations but its genuine belief as to the First Claimant’s conduct on the night in question was not reasonably held. It follows that the decision to dismiss was not substantively fair. Procedural Fairness[119]The First Claimant was invited to meetings at the investigatory, disciplinary and appeal stages of the process. At each stage, he was informed of his right to be accompanied, was provided with the information and evidence available and afforded an opportunity to put his case forward. The First Claimant was given a right of appeal, which he exercised. Both the disciplinary hearing and the appeal hearings were conducted by different panels.[120]The First Claimant was given prior warning of all meetings. He was told that the disciplinary process could result in his dismissal. - 26 -[121]However, as detailed above, the Respondent’s sequential approach to its decision making resulted in potentially relevant evidence being unavailable to the First Claimant at his disciplinary hearing, namely the findings that Mr Jones had not witnessed him being racist or urinating on the shop floor. That error was not corrected on appeal (or if it was, there was no explanation by the Respondent of how it had been weighed and what conclusions had been reached).[122]A reasonable employer would have ensured that the disciplinary process operated in a way to ensure that the First Claimant had knowledge of, and the ability to rely upon, the Respondent’s findings in respect of Mr Jones, whether in the course of the initial disciplinary process or by way of the appeal process.[123]The First Claimant was not adequately informed of the Respondent’s reasons for its decision that the allegations against him were made out. As found, the disciplinary panel failed to adequately reason its decisions. The First Claimant was entitled to know why and how the Respondent had treated the evidence and reached the findings that it did, not least so he could pursue a meaningful appeal against those findings. It is trite that a right of appeal must be real and effective. It struggles to be so in circumstances where there is a lack of reasoning.[124]A reasonable employer would have ensured that reasons were provided for how and why it had reached its decisions and, where they were lacking, require that they be provided.[125]In addition, a reasonable employer would not have included Ms. Rees on the appeal panel given her prior involvement in the investigation process. In the alternative, a reasonable employer would have ensured that fuller reasons were provided by the appeal panel when it delivered its decisions, such that how Ms. Reed ensured she remained impartial was clear to see.[126]For all those reasons, I found that the procedure followed by the Respondent in respect of the disciplinary and appeal processes were unfair. Substantive & Procedural Fairness: The Second Claimant Substantive Fairness[127]It was again not suggested by Mr Pollitt that the Respondent did not believe that the Second Claimant had committed the conduct of which he was accused. However, it was contended that such a belief was not - 27 - held on reasonable grounds and was the product of investigations which were not sufficient.[128]As with the First Claimant, there was insufficient evidence to conclude that the Respondent’s belief that the Second Claimant was aware that the First Claimant had urinated and made racist remarks and failed to intervene or act was reasonably held. For the same reasons, the decision making procedures detailed above rendered those findings of fact about the events of the evening of 2 June 2023 flawed and unreliable. A reasonable employer would have been alive and alert to those flaws and addressed them before reaching its decisions.[129]There was insufficient evidence that the disciplinary panel had regard to its findings as to Mr Jones’ knowledge of those events when considering the Second Claimant’s case, notwithstanding that those findings predated the hearing and determination of the Second Claimant’s case. Again, these were highly material, relevant findings which, because of the decision to consider and decide the cases sequentially, could and should have been considered in determining the case against the Second Claimant. A reasonable employer would have had regard to findings of such obvious relevance.[130]The sequential approach adopted by the disciplinary panel also meant that relevant aspects of the Second Claimant’s defence to the allegations was prejudged and decided before his hearing had convened (most significantly, the same panel’s earlier decision that the First Respondent had urinated and had made racists comments). A reasonable employer would have anticipated such an eventuality and changed its approach to how it reached its decisions, so that its mind was not closed and it was able to approach each case in a fair and open manner.[131]As with the First Claimant, credibility was a key factor in the Respondent’s decisions regarding the Second Claimant. Both Mr Loader (at Paragraph 47 of his statement) and Ms. Reed (at Paragraph 35 of her statement) recalled that neither panel thought that the Second Claimant was being honest. The disciplinary panel had failed to adequately to take account of seemingly corroborative evidence (of Mr Jones) by its sequential approach. The appeal panel was not so precluded but failed to have any regard, proper or otherwise, to the fact that the Second Claimant’s account was found to be consistent with Mr Jones.[132]In addition, because of the wholesale failure to provide any adequate reasoning for the various findings, conclusions and decisions reached by both the disciplinary and the appeal panels, it is impossible to know why or how the Respondent weighed the evidence and reached the belief - 28 - that the Second Claimant had been aware of the alleged urination and racists comments. That absence of transparency, as it did in the First Claimant’s case, masked any meaningful finding as to whether the belief held by the Respondent was objectively reasonable.[133]That lack of reasoning and transparency was starkly illustrated by the revelation in the course of the oral evidence that the disciplinary panel had in fact found that the Second Claimant had not heard the ‘rice comments’. That not only enhanced the Second Claimant’s credibility, it was also consistent with Mr Jones’ evidence. How, if at all, that was weighed into the disciplinary panel’s analysis of the evidence remains unknown.[134]If that were not example enough, the lack of reasoning and transparency extended to the appeal panel, which was similarly unaware that the Second Claimant’s account of not hearing the First Claimant make the ‘rice comments’ was accepted by the disciplinary panel. That precluded the appeal panel from taking that relevant material issue into account, to the detriment of the Second Claimant.[135]As with the First Claimant, I was less persuaded that the Respondent’s investigation into the allegations against the Second Claimant was insufficient or not reasonable in the circumstances. As noted above, evidence was gathered from the take away owners and staff. A copy was made of the relevant CCTV footage in the immediate aftermath of the events under investigation. An independent third party was brought in to conduct a fuller investigation, which included undertaking interviews with the Claimants, Mr Jones and Mr Moreton.[136]For those reasons, I found that the Respondent conducted reasonable and adequate investigations into the allegations against the Second Claimant. However, as detailed above, the manner in which the Respondent thereafter considered and determined those allegations was flawed.[137]For all those reasons, the Respondent’s decision to dismiss the Second Claimant for gross misconduct was based upon proper and adequate investigations but its genuine belief as to the Second Claimant’s knowledge on the night in question was not reasonably held. It follows that the decision to dismiss was not substantively fair. Procedural Fairness[138]As with the First Claimant, the Respondent invited the Second Claimant to meetings at the investigatory, disciplinary and appeal stages of the process. At each stage, he was informed of his right to be accompanied, was provided with the information and evidence available and afforded - 29 - an opportunity to put his case forward. The Second Claimant was given and exercised a right of appeal. Both the disciplinary hearing and the appeal hearings were conducted by different panels.[139]The Second Claimant was given prior warning of all meetings. He was told that the disciplinary process could result in dismissal.[140]However, as detailed above, the Respondent’s sequential approach to its decision making resulted in aspects of the case against the Second Claimant being predetermined (as to the First Claimant’s alleged conduct). There was insufficient evidence that the disciplinary panel had proper regard to relevant matters, namely its finding that Mr Jones had not witnessed the First Claimant being racist or urinating on the shop floor. Not only was that error not corrected on appeal, the appeal panel went on to find against the Second Claimant on an issue which had been found in his favour by the disciplinary panel (that he had not heard the ‘rice comments’). At no point during the whole disciplinary process was the Second Claimant made aware that that issue had, first, been found in his favour, only to then be found against him.[141]The appeal panel also acted in breach of the Respondent’s own procedures. As noted above, Appendix 8 limited the remit of the appeal panel to “a consideration of the specific area with which you are dissatisfied in relation to the outcome of the original meeting” (at [742] of the Bundle). Self-evidently, had the Second Claimant been aware that the disciplinary panel had found in his favour regarding hearing the ‘rice comments’, he would not have been “dissatisfied” with that determination. However, the appeal panel, being wholly unaware of the reasons for the disciplinary panel’s decisions, either proceeded in the erroneous belief that the disciplinary panel had found that point against the Second Claimant or, of its own volition, overturned “a specific area” with which the Second Claimant was not “dissatisfied.”[142]In the alternative, if the appeal panel had proper regard to the findings of the disciplinary panel both in respect of the Second Claimant and Mr Jones, there was no explanation by the Respondent of how it had been weighed and what conclusions had been reached.[143]The Discipline Procedure gave the appeal panel the power to conduct a full re-hearing where there was new evidence presented, which had not been considered by the disciplinary panel. As noted above, the Second Claimant raised what he described as ‘new evidence’ in his grounds of appeal. The appeal panel did not conduct a re-hearing (according to Ms. Reed’s oral evidence). That was entirely a decision for the panel but the explanation provided by Ms. Reed was problematic. As noted above, in her oral evidence, Ms. Reed explained that the appeal panel did not conduct a re-hearing because the ‘new evidence’ did not “change the - 30 - original decision.” If correct, the appeal panel had effectively prejudged the ‘new evidence’ and reached conclusions on it before deciding on the format or remit of the appeal process. That was also, by definition, before the appeal hearing. As such, the appeal considered and dismissed the ‘new evidence’ without hearing from the Second Claimant or giving him any opportunity to engage with or respond to the panel’s adverse conclusions on that aspect of his appeal.[144]It is self-evidently unfair to predetermine an issue raised on appeal in circumstances where the appellant is not afforded any opportunity to respond to or address the panel in advance. That was compounded by the fact that at no point was the Second Claimant informed that the appeal panel had decided, apparently in advance of the appeal hearing, that his ‘new evidence’ did not “change the decision.”[145]In addition, if the appeal conducted a full re-hearing of the case, rather than a review, it did not notify the Second Claimant of that in advance (it is, according to the Respondent’s own procedure, a discretion to re-hear the evidence) nor explain how it had evaluated and weighed the totality of evidence nor set out its findings of fact.[146]A reasonable employer would have ensured that the disciplinary process operated in a way to ensure that the Second Claimant had knowledge of, and the ability to rely upon, the Respondent’s findings in respect of Mr Jones, whether in the course of the initial disciplinary process or by way of the appeal process. A reasonable employer would have been clear in whether findings in the Second Claimant’s favour were potentially at risk of being overturned on appeal.[147]Like the First Claimant, the Second Claimant was not adequately informed of the Respondent’s reasons for its decision to find that the allegations against him were made out. The disciplinary panel failed to adequately reason its decisions, to such an extent that the Second Claimant was also not made aware that his evidence that he had not heard the ‘rice comments’ was accepted. The appeal panel failed to correct those shortcomings, falling into its own errors of reasoning and transparency. The lack of adequate reasoning hampered the Second Claimant’s ability to effectively exercise his right of appeal.[148]A reasonable employer would have ensured that reasons were provided for how and why decisions had been reached and, where they were lacking, ensure that they were provided. That would have also extended to explaining how Ms. Reed had maintained her impartiality, given her prior involvement in the investigative process.[149]In the alternative, a reasonable employer would not have included Ms. Rees on the appeal panel given that prior involvement. - 31 -[150]For all those reasons, I found that the procedure followed by the Respondent in respect of the disciplinary and appeal processes were unfair. Conclusions[151]By reason of the above findings of fact and analysis, I was satisfied that the decision by the Respondent to dismiss the First Claimant was neither substantively nor procedurally fair. The Respondent’s belief as to the First Claimant’s conduct was not held on reasonable grounds and the procedures it adopted were flawed.[152]As such, the claim of unfair dismissal by the First Claimant is made out and succeeds.[153]By reason of the above findings of fact and analysis, I was satisfied that the decision by the Respondent to dismiss the Second Claimant was neither substantively nor procedurally fair. The Respondent’s belief as to the Second Claimant’s conduct was not held on reasonable grounds and the procedures it adopted were flawed.[154]As such, the claim of unfair dismissal by the Second Claimant is made out and succeeds.[155]In my judgment, a reasonable employer would have: 155.1. Appreciated and addressed the inherent unfairness caused by adopting a sequential approach to determining the cases, either during the disciplinary process or on appeal; 155.2. Given reasons for its decisions, both at the disciplinary and appeal stage (and perhaps recognized that an absence of reasons might have been indicative of a flawed or insufficient decision making process); and 155.3. Been alive to the issues of actual or perceived impartiality and addressed them in a manner which removed any reasonable doubt.[156]In reaching these conclusions, I make no findings on the innocence or guilt of either Claimant. That was not within my remit and I have assiduously avoided doing so, notwithstanding having sight of and access to all the evidence which was before the Respondent at the time. Rather, I have considered whether, when viewed objectively and mindful of the margin of appreciation afforded to all employers, the Respondent’s - 32 - decisions to dismiss on grounds of gross misconduct were fair, as required by sections 94 and 98 of the ERA 1996.[157]For the reasons above, I concluded that they were not.[158]A further hearing to determine remedy will be arranged. The parties will be contacted separartely about that.