Miss M Birley v J Pritchard on behalf of the Executive Committee of Meanwood Conservative Club: 1803712/2022

EMPLOYMENT TRIBUNALS

Case No 1803712/2022

Between

Miss M BirleyClaimant

J Pritchard on behalf of the Executive Committee of Meanwood Conservative ClubRespondent

Before

Employment Judge Jaleel

Mr Simon Taylor for claimant

Mr Richard Ryan (instructed by Counsel) for respondent

Date 17 August 2023

JUDGMENT

[1]The claimant’s complaint of unfair dismissal is not well-founded and is dismissed.

REASONS

[1]This was a complaint of unfair dismissal brought by the claimant. The respondent says the reason was misconduct.

[2]I had before me a Hearing bundle prepared by the respondent. The claimant’s representative had been provided with a copy of the bundle, which ran to some 270 pages, in advance of the hearing.

[3]Mr Ryan provided the Tribunal and Mr Taylor a copy of his ‘opening submissions’ as well as a ‘chronology and key documents’. Mr Taylor was provided the opportunity to consider these documents.

[4]The claimant has also been suffering with ill health; I advised parties that additional breaks be taken to accommodate the claimant and she was also to inform me if she required a break. The parties were in agreement with this approach.

[5]Having identified the issues, I took some time to privately read into the witness statements exchanged between the parties and relevant documentation.

[6]I heard evidence from the respondent’s witnesses, Janet Pritchard (Secretary), Tracey Hirst (HR advisor), Ronnie Joynson (Treasurer).

[7]I then heard evidence from the claimant.

[8]A statement purported to be from Ms Yvonne Taylor (“Ms Taylor”) was also submitted as evidence. Having considered the statement I find that I could not give it any weight; it was devoid of her personal details and was unsigned. Even, had it been signed, only significantly reduced weight could be given to this evidence in circumstances where Ms Taylor was not present to be cross examined.

[9]I found both due to time constraints and the fact that the parties had not adequately prepared to deal with any remedy applicable so I determined that this would be dealt with, if required, at a separate hearing. I confirmed that, on this basis and changed circumstances, I would consider any arguments either that compensation ought to be reduced to reflect the claimant’s pre-dismissal conduct and/or on the basis that, if there had been a defect in procedure, it may not have made a difference to the outcome.

[10]I identified the issues to be determined (which had previously been discussed and agreed at a preliminary hearing and both parties confirmed their agreement as follows:10.1 What was the reason or principle reason for dismissal? The respondent says the reason was misconduct. The tribunal will need to determine whether the respondent genuinely believed the claimant had committed misconduct.

10.2 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will decide, in particular, whether;10.2.1 there were reasonable grounds for that belief;

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

10.2.3 the respondent otherwise acted in a procedurally fair manner;

10.2.4 dismissal was within the range of reasonable responses.

10.3 If the claimant’s dismissal was unfair, what is the chance, if any, that she would have been fairly dismissed in any event?

10.4 If the claimant was unfairly dismissed, did she cause or contribute to her dismissal by her own culpable and blameworthy conduct?

10.5 The claimant maintains that she was dismissed due to Mrs Pritchard pursuing a vendetta against her. Allegations were alleged to be manufactured and unspecific. The respondent dismissed the claimant with notice on the basis of a further act of misconduct following a final warning. A tribunal can only consider lack of fairness reliant on a final warning if that warning was given in bad faith or was manifestly inappropriate. Facts

[11]The respondent operates as a private members club. The committee are responsible for the overall running of the club including bar work. The stewardess, Ms Taylor has responsibility for running the bar and directing bar staff but she ultimately reports to the committee.

[12]The claimant was appointed as Bar Staff in 2005.

[13]As a result of Covid 19 the respondent experienced a downward trajectory in respect of its finances; as a result, the committee of the club requested that Mr Joynson carry out a review of its costs and expenditure.

[14]Mrs Pritchard was appointed as Secretary in March 2021; she volunteered for the position as no one else wanted to carry out the role. She was formerly the President of the club. She has been a member of the club for some 25 years. She was asked by Mr Joynson to assist in his review.

[15]Ms Hirst commenced her role as an external HR advisor in March 2021. She also liaised with Mrs Pritchard and suggested that she speak with Bar Staff to discuss the respondent’s finances and ask their views as to how costs could be reduced. The committee was concerned that hours worked as well as overtime being paid was excessive and disproportionate to the club’s takings.

[16]The claimant refused to cooperate with Mrs Pritchard’s requests for a meeting to discuss the matter. Mrs Pritchard also reported foul language being used by the claimant.

[17]The respondent received complaints about the claimant’s performance and conduct from committee members and members of the club.

[18]On 09 July 2021 the claimant was invited to attend an investigation meeting regarding her conduct and performance. The claimant did not confirm she would be attending the meeting as requested in the letter. It therefore did not go ahead.

[19]The claimant was invited to a further investigation meeting scheduled to take place on 19 July 2021. The claimant failed to attend this meeting.

[20]On 22 July 2021 the claimant was sent a five-page summary document of the complaints that were made against her.

[21]On 28 July 2021 the claimant was invited to attend a disciplinary hearing scheduled to take place on 2 August 2021. The allegations that she faced were:a. Her own inappropriate behaviour leading to the unpleasant and unwelcoming atmosphere in the club;

b. The bullying of Adam Lee;

c. The number of members leaving the club due to the atmosphere;

d. The incident on Sunday 13th June between herself and the club secretary;

e. The actual financial loss of the club over the last ten years (prior to covid);

f. The quality of the beer;

g. Breaches and poor management of covid legislation;

h. The management of tips;

i. Reports of customers being short changed;

[22]On 2 August 2021 the claimant advised Mr Joynson that she would not be attending the disciplinary on that day.

[23]The disciplinary hearing was rescheduled to take place on 9 August 2021. On the date of the hearing the claimant again advised Mr Joynson and Mrs Pritchard that she would not be attending the disciplinary hearing.

[24]The respondent once again rescheduled the disciplinary hearing. The claimant did not attend and it proceeded in her absence on 23 August 2021.

[25]The claimant was issued with a final written warning by Mr Joynson on 31 August 2021 (page 78).

[26]The allegations set out above at paragraph 21 a-d were found to be proven whilst allegations 18 e-i were found not to be proven. The letter to the claimant confirmed that it was expected that the claimant’s conduct must improve with immediate effect:a. You must welcome all members to the Club in a friendly, authentic and professional manner;

b. You must not shout, swear or be aggressive whilst at work. This is to both members and staff;

c. You must not antagonise, stir up or goad members (or staff), thereby causing upset and an unpleasant atmosphere

d. You must cooperate with the committee, especially with myself and the Secretary and have a ‘happy to help’ attitude It was also a condition of the final written warning that the claimant apologise to Mrs Pritchard in the presence of the Committee for her inappropriate behaviour towards her.

[27]The claimant was advised that the allegations were very serious and in Mr Joynson’s opinion warranted dismissal. However, he had taken account of character reference letters, her employment record and her length of service when electing not to dismiss her. In his evidence Mr Joynson confirmed that he was minded to dismiss the claimant but accepted the advice of Ms Hirst who had been employed to advise on HR matters.

[28]The letter also confirmed that the final written warning remained live on the claimant’s file for 12 months. It was highlighted that if there was any reason for the claimant to face disciplinary action, even if it was unrelated to the above types of incidences over the next 12 months could ultimately lead to the termination of her employment.

[29]The claimant was advised of her right to appeal the decision but she elected not to do so.

[30]I found that the claimant’s and Mrs Pritchard’s relationship changed when she assumed her role as secretary of the club. Prior to this, both of the aforementioned enjoyed a cordial relationship. In her role of secretary, Mrs Pritchard was more involved with the running of the club; as she had been tasked with discussing the running of the bar with a view to cutting costs. The claimant did not take to this kindly as it was felt her role and indeed the role of her team was being questioned. The claimant had also assumed the role of stewardess in the absence of Ms Taylor who had been off work with long term sickness. The claimant and Mrs Taylor also enjoyed a close friendship and had been staying at her flat which is located at the club. I found that the claimant viewed Mrs Pritchard as an interference and was not pleased with her involvement in the running of the bar.

[31]I also found that the claimant is likely to have misinterpreted Mrs Pritchard’s behaviour to be hostile; she had been appointed as secretary and given her seniority I find it plausible that she adopted an assertive attitude to get the ‘job done’ which did not sit well with the claimant. In her previous role as President of the club, Mrs Pritchard was not involved in the day-to-day running of the club or bar.

[32]The claimant raised a grievance on 25 October 2021 (page 75) regarding an incident between herself and Mrs Pritchard concerning the stewardess Mrs Taylor. The claimant believed that her comment “……you think that is bullying’… amounted to bullying.

[33]A grievance hearing was scheduled to take place on 15 November 2021 (page 74). The meeting was to be chaired by Tracy Hirst. It was made clear that the claimant could be accompanied by a colleague or trade union official.

[34]On 5th November the claimant requested that Mr Taylor be allowed to attend the meeting with her. The claimant also raised further grievances regarding staff members not being allowed to use the club’s facilities.

[35]On 11th November 2021 the respondent reminded the claimant that she was required to apologise to Mrs Pritchard as per her final written warning before the committee on 17 November 2021. It had also been reported that the claimant had made derogatory comments about the committee which required addressing.

[36]By way of letter dated 11 November 2021 the claimant was informed that her grievance meeting was to be held on 18 November. She was also advised that her companion must be a trade union representative or colleague. As Mr Taylor was neither, he would not be allowed to accompany her.

[37]In her letter dated 16 November the claimant refused to apologise to Mrs Pritchard as she felt she would be humiliating herself and did not agree with the versions of events that transpired on 13 June 2021. She referred to historical statements regarding the said incident and stated that the respondent could dismiss her at their own discretion. I found this approach to encapsulate the attitude of the claimant towards Mrs Pritchard; she had not elected to partake in the disciplinary process despite the serious nature of concerns, she elected not to appeal the final written warning but was nevertheless adamant that she would not apologise to Mrs Pritchard. It was evident that the claimant enjoyed a poor relationship with Mrs Pritchard and her unwillingness to apologise stemmed from a ‘us v you’ mentality that had developed since she became secretary.

[38]Mrs Pritchard submitted a statement dated 18 November 2021 (page 66); this related to the claimant’s demeanour towards her and when she had asked her for a tonic (but the claimant had instructed other bar staff to serve her instead).

[39]On 22 November 2021 (page 64) the claimant was invited by Mr Joynson to attend an investigation meeting on 29 November 2021 regarding her conduct and performance. The claimant failed to attend this meeting and it was progressed in her absence. The notes of the meeting are at page 63. The note confirms that Mr Joynson had met with the claimant on the day but she had informed him that she would not be attending the meeting despite cover being in place. A committee member was also told the day before by the claimant that she would not be attending the meeting.

[40]It was held that the claimant had been unable to demonstrate the following points which had been outlined in her final written warning:a. You must not antagonise, stir up or goad members (or staff), thereby causing upset and an unpleasant atmosphere;

b. You must cooperate with the committee, especially with myself and the Secretary and have a ‘happy to help’ attitude The Secretary has reported that Maxine has been unable to demonstrate points 3 and 4 following her Final Written Warning being issued. Maxine had the opportunity to appeal against the outcome of the Final Written Warning and its conditions but she didn’t. By not complying with these conditions Maxine is showing contempt yet again for the disciplinary process, but most of all, a lack of respect towards the Club’s secretary, Janet Pritchard, who as previously stated is representing the Committee’s instructions in managing the bar staff.

[41]A further statement was submitted by Mrs Pritchard on 2 December (page 62) concerning the claimant which related to the following:a. Her attitude being aggressive;

b. Her behaviour and demenour;

c. Telling staff members that Mrs Pritchard had instructed them not to use the air conditioning (when this wasn’t the case);

d. Discussing matters with Mr Joynson causing her to feel belittled; and

e. Being difficult towards her and feeling bullied

[42]On 3rd December 2021 the claimant was invited to attend a disciplinary hearing scheduled to take place on 9 December. The purpose of the disciplinary hearing was set out as follows: “…to address some serious concerns regarding your conduct and behaviour in respect of you being able to comply with all of the conditions of your Final Written Warning that was issued to you on 31 August 2021. These were that you apologise to the Secretary in the presence of the Committee for your behaviour towards her. Also detailed in the Final Written Warning were some conduct improvements that were required from yourself with immediate effect, which must be constantly sustained. As a reminder these are detailed below:a. You must welcome all members to the Club in a friendly, authentic and professional manner;

b. You must not shout, swear or be aggressive whilst at work. This is to both members and staff;

c. You must not antagonise, stir up or goad members (or staff), thereby causing upset and an unpleasant atmosphere

d. You must cooperate with the committee, especially with myself and the Secretary and have a ‘happy to help’ attitude

[43]The claimant was advised that a potential outcome of the hearing could be dismissal. She was also provided with documentation including notes of the meeting dated 29 November 2021, statements of Mrs Pritchard, a copy of the final written warning issued on 31 August 2021 and the disciplinary policy.

[44]By way of letter dated 6 December 2021 (pages 60a – 60c) the claimant advised the respondent that she was concerned that the investigation hearing proceeded in her absence given that she had requested for it to be rearranged. She also outlined further concerns relating to Mrs Pritchard, cover for the bar and meeting arrangements. I note that it became somewhat of a common theme for the claimant to raise concerns regarding the scheduling of a meeting, to not attend the meeting and thereafter raise further concerns of the process. In her ET1 and during evidence the claimant and her representative emphasised that the respondent did not allow a colleague to attend an investigation meeting which is in direct conflict of the disciplinary policy. This was an issue raised continuously by the claimant as justification not to attend an investigatory

[45]I have considered the respondent’s disciplinary policy as seen at page 79 – 79b. In the introduction section it states: ‘At all stages of the procedure the colleague will have the right to be accompanied by a trade union representative, or work colleague’.

[46]This is the clause that the claimant repeatedly relies upon in support of her argument that the procedure was flawed. It is also relied upon to justify her refusal to attend investigatory meetings scheduled by the respondent.

[47]The policy then goes on to set out the procedure and sets out what constitutes a first written warning, final written warning as well as examples of gross misconduct. The policy confirms that a final written warning will be kept but will be disregarded for disciplinary purposes after twelve months, subject to achieving and sustaining satisfactory conduct or performance. The final step is dismissal following which an appeal should be raised within 5 working days of receiving the outcome letter.

[48]There is also a separate section titled ‘right to be accompanied’. This section clarifies that a colleague may be accompanied at their disciplinary or appeal hearing by either a work colleague or qualified trade union representative. It also confirms the following: If the colleague’s companion cannot attend on a proposed date, they can suggest another date so long as it is reasonable and is not more than one calender week after the original date.

[49]The respondent also operates a grievance policy which can be seen at pages 77 - 77c. This is a comprehensive policy which sets out the procedure over three stages; informal stage, formal stage and appeal. The policy also states that a colleague may be accompanied at their grievance or appeal hearing by either a work colleague or qualified trade union representative

[50]This policy also confirms if the colleague’s companion cannot attend on a proposed date, they can suggest another date so long as it is reasonable and is not more than one calendar week after the original date.

[51]It is evident that the section ‘right to be accompanied’ clarifies that this right exists in respect of disciplinary and appeal process, and not the investigation. The Acas code of practice also confirms that there is no statutory right for an employee to be accompanied at a formal investigatory meeting. I found that the claimant was being unnecessarily obstructive when interpreting the policy. It is again another example of the claimant’s behaviour which I found was to cause disruption rather than assist the respondent in its investigations.

[52]The respondent had also communicated to the claimant on more than one occasion that it had secured cover for the bar when scheduling a meeting. However she would not accept this. Whilst it is noted that in January 2022 Mr Joynson admitted he had made a mistake and had not arranged cover for the bar (despite advising to the contrary) I do not find that this actually concerned the claimant. As far as the claimant was advised, cover had been arranged: it was for her to then attend the meeting. If it later transpired that cover had not been arranged and the club/bar had encountered issues that would remain a matter between Mr Joynson and the committee. However, I found that the claimant would readily seek to avoid attending meetings and then subsequently complain about the procedure without offering a practical solution.

[53]By way of letter dated 8 December 2021 the claimant raised a further grievance in respect of an incident that occurred with Mrs Pritchard relating to the club’s heating.

[54]Mrs Pritchard provided a response to the incident referred to by the claimant in her letter by way of an email dated 10 December. Mrs Pritchard explained her version of events and stated that the claimant was ‘trying very hard to make her life difficult’.

[55]By way of letter dated 9 December 2021 it was proposed that the investigation meeting be put on hold pending the determination of the claimant’s grievance. This demonstrated that the respondent was continuing to be flexible in its approach to accommodate and assist the claimant.

[56]The grievance hearing took place on 15 December 2021. It was attended by Ms Hirst, the claimant and Laura Hanakin (bar staff).

[57]On 23 December the claimant advised Mr Joynson that she was dissatisfied with the grievance hearing, she had expected him to attend and felt that she was not being taken seriously. This is at odds and inconsistent with the claimant then identifying Mr Joynson as one of the persons involved in a conspiracy against her.

[58]Mrs Pritchard submitted a further statement on 15 January 2022; this related to issues with the drain, it was felt that the claimant had not reported the matter and there was a difficult atmosphere at work.

[59]The grievance outcome was sent by way of letter dated 19 January 2022. A 13- page report (page 53-53L) detailed the findings and conclusions that were reached. The entirety of the claimant’s grievances were not upheld. However, it was confirmed that the claimant was no longer required to apologise to Mrs Pritchard.

[60]The claimant appealed the grievance outcome by way of letter dated 23 January 2022. The claimant was aggrieved by what she perceived as ‘a real lack of responsibility and a great deal of blaming’. The claimant also lodged a further grievance regarding Mrs Pritchard and comments that she made on 17 November 2021 to a member. She was said to have stated ‘Yvonne is being manipulated by Maxine’ and repeated this to the committee.

[61]In the interim the respondent had also scheduled a further investigation hearing on 31 January 2022. In the letter of 24 January 2022 Mr Joynson stated that he had asked the stewardess to arrange cover for the bar to enable the claimant to attend the meeting. The letter also stated that as the claimant would be working on the Monday, if she did not attend, the meeting would go ahead in her absence.

[62]The claimant provided a response to this letter on 27 January 2022 (page 45). She was concerned with the content of the letter and addressed this within:a. Title of the letter – the claimant clarified that she had not refused to attend previous meeting;

b. Cover for the bar – the claimant was concerned that bar cover had not been arranged despite this being stated in the letter;

c. Working on Monday – the claimant clarified that she did not normally work on Monday afternoon;

d. Right to be accompanied at the investigation meeting – the claimant highlighted that the disciplinary policy allowed her to be accompanied by a colleague or trade union representative;

e. Putting the investigation meeting on hold until her appeal had been resolved – the claimant advised that her grievance had not been resolved and she had submitted an appeal.

[63]Mr Joynson sent a letter to the claimant on 31 January 2022 to address the concerns that she raised in her letter dated 27 January 2022:a. Title of the letter – the meeting went ahead on 29 November as the claimant had refused to attend the meeting;

b. Cover for the bar – it was accepted that he had not asked Yvonne to arrange cover and he apologised for this.;

c. Working on Monday – He also apologised for assuming that the claimant was working on 31 January 2022;

d. Right to be accompanied at the investigation meeting – it was clarified that the right to be accompanied applied to the actual disciplinary hearing and appeal;

e. Putting the investigation meeting on hold until her appeal had been resolved – it was clarified that Tracy Hirst chaired the grievance hearing and prepared a report. Mr Joynson had not stated that he would be attending the grievance

[64]A statement was submitted by a member on 27 January 2022 (which was subsequently anonymised by the respondent). It was stated that the bar staff must be playing the fruit machines as the credit had decreased from £250.00 to £1.00 overnight. The statement did not say that the claimant was responsible for this. The statement also sets out an incident whereby the said person was instructed by the claimant to pick up her winnings at the bookies, a mistake had arisen and the claimant is said to have engaged in a verbal altercation over the telephone with the cashier at the bookies using expletives which led to him terminating his membership with the club. It was also stated that the claimant had used other staff members (who were working) to go to the bookies for her.

[65]Mr Ryan, on behalf of the respondent, submitted that the specific person wanted to preserve anonymity as he feared for his safety. In particular, it was highlighted that the claimant’s family members had a reputation in the local area and had been involved in serious assault matters for which a custodial sentence was necessary. The claimant in response accepted that her family members had a reputation in the local area but emphasised that she should not be tarnished as a result. I accept that the existence of fear justified anonymous statement. However, I also point out that the claimant accepted that she had worked out the identity of the individual by a process of elimination. She was therefore not prejudiced by the anonymisation.

[66]Mr Joynson sent a letter on 28 February 2022 which confirmed that the appeal hearing had been scheduled to take place on 3 March 2022 (to be chaired by Gary Burns). The claimant failed to attend this. This was despite the claimant being at work at the time. The meeting went ahead in her absence.

[67]A second letter was sent on the same day inviting the claimant to attend a disciplinary investigation meeting after the grievance appeal meeting on 3 March 2022. Ms Hirst was to chair this meeting.

[68]A letter was received by the respondent on 3 March 2022 whereby the claimant highlighted her dissatisfaction. She stated that her role and the stewardess role had been advertised with a start date of 21 February 2022 and this had caused her distress. She was also aggrieved that she was not given sufficient time to arrange for someone to accompany her to the grievance appeal meeting and wished for it to be rearranged. Within this letter the claimant also stated that she would be happy to attend a rearranged investigation meeting if she was allowed to be accompanied by a work colleague or trade union representative as per the club policy and once the grievance appeal process was completed.

[69]Mr Joynson sent a letter to the claimant addressing her concerns regarding the advertising of roles. In his evidence he explained that the committee felt the need to recruit additional bar staff to assist the stewardess (who had been very ill and had been off for 5 months in 2021) and the claimant herself was facing disciplinary action and had a final written warning on file. He also advised of the arrangements with the recruiter and expected the advert to be discreet and not to mention the name of the club. He apologised for the distress that this had caused but emphasised that the club had genuinely been trying to arrange a contingency plan (which did not go to plan) and there was no pre-determination in respect of the Claimant’s employment. I accepted the evidence of Mr Joynson in this regard: he was frank about the errors that had occurred when placing the advertisement and his evidence was consistent. I found the circumstances warranted the respondent to take steps to ensure that a contingency was in place. He had no previous experience of this nature and accepted that mistakes were made from an administrative error in this regard. The claimant herself has alluded to Ms Taylor’s health issues in her grievance and had been carrying out her role for a substantial amount of time. It would therefore make sense for the respondent to explore staffing options.

[70]There is correspondence in the bundle whereby Ms Hirst sought to establish when the fruit machines are turned off. Mr Joynson in his email dated 2 March 2022 advised that the machines are on permanent timers which allowed them to be played all hours that the club bar is open as well as 15 minutes after the bar closes.

[71]Mrs Pritchard sent a further statement by email to Tracey Hirst on 5 March 2022. She was concerned that the claimant had been discussing the ongoing matters and making statements about herself to members. She stated that members were ‘fed up when coming into the club’. It was also stated that a valued member of the committee (who had attended the club with his family members) had resigned as he was approached by a member who persistently asked him what was happening with the bar staff. Mrs Pritchard stated that ‘Maxine (the claimant) had been sweetness and light but behind my back she says I have no idea of running a club’. Mrs Pritchard said that the claimant had stated that she shouted at bar staff when this wasn’t the case. It was felt that bar staff were resistant to the changes that Mrs Pritchard was seeking to implement (under the instruction of the committee) and the claimant who appeared to have taken over the running of the bar. She felt that the claimant was a bad influence on Ms Taylor and members had left due to the attitude of senior bar staff.

[72]In her ET1 claim form and whilst giving evidence it was stressed that the phrase ‘Maxine (the claimant) had been sweetness and light but behind my back she says I have no idea of running a club’ was inconsistent with the statements submitted by Mrs Pritchard which used the terms ‘aggressive’ and ‘cold’. I do not agree with this; as explained by Mrs Pritchard in evidence she had highlighted in her statements the incidents and behaviour that caused her concern. The expression was used to describe how the claimant’s persona was at times in person and the shift that had been experienced when she became secretary of the club. I did not find any inconsistency in using this term when describing the claimant’s conduct in her statements.

[73]The grievance appeal hearing took place on 3 March 2022. The meeting went ahead in absence of the claimant who did not attend despite being at work. It was chaired by Gary Burns. By way of letter dated 6 March 2022 the claimant was advised of the outcome of her grievance appeal. Mr Burns overturned one allegation having determined that Mrs Pritchard’s comment ‘you think that is bullying’ is unhelpful and can be perceived as a threat. I found that this related to that particular comment and did not relate to Mrs Pritchard’s conduct or demeanour as a whole. The remaining allegations were upheld. Mr Burns also offered to meet with the claimant by way of a further appeal meeting if she was able to set out further grounds of appeal within 7 days.

[74]A letter was also sent to the claimant in which Mr Burns confirmed that he had discussed concerns with Mrs Pritchard and asked that she keep her thoughts to herself when in public meetings and places to which she had agreed. Mrs Pritchard was sorry that her comments had upset the claimant and assured Mr Burns that it would not happen again. This confirms that the respondent was taking swift action in respect of the concern that had been found in the grievance process. This would not have been the case if the respondent was favouring Mrs Pritchard over the claimant.

[75]On 9 March 2022 the claimant was invited to attend a disciplinary hearing on 17 March (pages 33-33b). The allegations included:a. Her attitude towards the club secretary, which had failed to improve since her final written warning was issued;

b. Instructing bar staff who are working and being paid by the club to go to the bookies for her;

c. Failing to step up to the requirements of the job description of stewardess, despite taking the salary package associated with the role;

d. The club receiving complaints from members regarding the claimant at closing time

e. The club still receiving complaints from members and the committee regarding her sometimes abrupt and aggressive manner;

f. Members still resigning due to her abrupt and aggressive manner.

[76]The claimant did not attend the meeting.

[77]The claimant sent a letter headed ‘Appeal outcome of grievance hearing 03 March 2022’ whereby she detailed her dissatisfaction with the outcome reached. The claimant also set out the fact that she had communicated to Mr Joynson that she would not be attending the grievance hearing due to the short notice. She set out further grounds of appeal in respect of the matters that were upheld.

[78]The claimant was given another opportunity to attend a disciplinary hearing on 24 March 2022. The Claimant was also provided with the following documentation:a. Disciplinary policy

b. Your final written warning dated 31 August 2021

c. Job description for stewardess

d. Invite to your investigation meeting for 29 November 2021

e. Notes from your investigation meeting dated 29 November 2021

f. Statement from Janet Pritchard dated 2 December 2021

g. Invite for your disciplinary hearing for 9 December 2021 which didn’t happen

h. Invite for your disciplinary hearing for 13 January 2021 which didn’t happen

i. Letter from Janet Pritchard regarding the drain dated 15 January 2022

j. 2nd invite to your investigation meeting for 31 January 2022 which didn’t happen

k. 2nd invite to your investigation meeting for 3 March 2022r

l. 3 anonymous statements from members regarding fruit machines, your attitude and utilising bar staff to carry out personal errands for you dated 27 January 2022

m. Email from Ronnie Joynson, Treasurer, regarding fruit machines dated March 2022.

[79]Mrs Pritchard sent an email to Ms Hirst on 23 March regarding an incident that occurred on 16 March. Mrs Pritchard had asked the claimant to give the stewardess, Mrs Taylor, a letter but she refused. Mrs Pritchard attempted to ask Mrs Taylor to come down from the flat to take the letter but the claimant intervened and stated that she would not let Mrs Taylor downstairs as she was resting. Mrs Pritchard had to ask a member of the club to witness that she had given the letter to the claimant. The claimant then shouted over the bar to the member if he would witness her receiving letters at 1120 at night to which he simply responded saying that he wasn’t here at that time. This is yet again a further example of the claimant’s obstructive and unhelpful attitude towards the Mrs Pritchard. A simple request was made by Mrs Pritchard but the claimant was uncooperative.

[80]The claimant provided a statement in response to the allegations which was delivered by hand on 24 March 2022 (pages 26 – 26b). In response to the allegations that she was facing the claimant remained firm in her view that she should have been allowed to have someone accompany her in contravention of the policy. She also highlighted|:a. She was not required to apologise to Mrs Pritchard due to evidence which had raised inconsistencies with her evidence;

b. She felt that Mrs Pritchard did not like her and ‘has it in for me’;

c. She addressed the fact that she had not attended previous investigation meetings but this was due to the fact that she was not allowed to have someone accompany her in contravention of the disciplinary policy, bar staff cover had not been arranged, the respondent had refused to address her concerns and Ms Hirst also had an agenda to get rid of her;

d. Your attitude towards the club secretary, which has failed to improve since her written warning was issued – the claimant felt this allegation related to Mrs Pritchard’s perception and did not contain specific allegations. She also listed a number of questions to be put to Mrs Pritchard if she was to attend the hearing. She concluded by stating that Mrs Pritchard targeted her and was manufacturing a reason to dismiss her;

e. Instructing bar staff who are working and being paid by the club to go to the bookies for her – the claimant questioned which staff and the times that were being queried. She also stated that the only time a member of staff had gone to the bookies for her was on a Saturday. She accepted that Laura Hanakin had gone to the bookies for her but she did this in her own time before her start time of 7pm;

f. Failing to step up to the requirements of the job description of stewardess, despite taking the salary package associated with the role – the claimant stated that she was trying to help the club given that the stewardess was off with ill health. She described the salary package of £37,500 as ‘pie in the sky’ and emphasised that she was carrying out both roles without so much of a thanks;

g. The club receiving complaints from members regarding the claimant at closing time – the claimant stated that the machines are fitted with timers and switch off themselves;

h. The club still receiving complaints from members and the committee regarding her sometimes abrupt and aggressive manner – the claimant felt the allegation was devoid of key detail such as details of the behaviour, when it occurred and who it was reported by. On the contrary the claimant stated that she had spoken to committee members who had resigned due to Mrs Pritchard and Mr Joynson’s behaviour;

i. Members still resigning due to her abrupt and aggressive manner-– the claimant felt the allegation was devoid of key detail such as details of the behaviour, when it occurred and who it was reported by. The claimant also stated that the statement dated 27 January was vague and ‘appears to be something someone said to them’. The claimant concluded her statement by stating that Mrs Pritchard did not like her and wanted to get rid of her.

[81]I found that in March 2022 Ms Hirst made enquiries of security cameras near to the fruit machines for the purpose of investigation. Mrs Pritchard confirmed in correspondence that the cameras did not face the fruit machines.

[82]By way of letter dated 17 March 2022 it was confirmed that Mr Burns was prepared to have a face-to-face meeting with the claimant regarding the grievance appeal outcome on 24 March 2022. In her email to Ms Hirst on 21 April, Mrs Burns concluded ..It is important for the sake of the whole team we close these issues as soon as possible, and get the business back on track regardless of the outcome of the appeal..”. I find that Mrs Burns had not closed her mind in respect of the claimant’s appeal. It is apparent that Mrs Burns primary concern was the club’s success and her communication to Ms Hirst (whom the claimant alleges was also biased) does not support the claimant’s case of a vendetta or conspiracy in respect of her dismissal.

[83]The claimant attended the grievance appeal meeting on 24 March and was accompanied by Laura Hanakin. She was able to provide information that she felt was relevant to the points she was appealing in respect of her grievance. It was apparent from the meeting that the claimant was aggrieved at Mrs Pritchard and Mr Joynson who she believed wanted to get rid off her: “Now Janet and Ronnie are in the office, all this is going off. They want to get shut off us” It was also recorded: ‘Maxine said we have a problem with Janet and Ronnie. Its ridiculous and it needs to stop. We are not nasty people, all sound before Janet and Ronnie (took over)

[84]The above statements demonstrate the ‘us v them’ attitude that was prevalent. It also ties with my finding that matters took a turn for the worse when Mrs Pritchard became the club secretary.

[85]A disciplinary hearing took place on 24 March 2022. This was attended by the claimant, her companions Laura Hanakin and Yvonne Taylor, Ms Hirst and Mr Joynson. The minutes of the hearing are at page 24. I set out a summary of the arguments raised by the claimant:a. Her attitude towards the club secretary, which has failed to improve since her written warning was issued: The claimant suggested that Mrs Pritchard did not communicate with her and denied being aggressive. She stated that she would communicate with Mr Joynson as she was not aware when Mrs Pritchard came into the office. She also stated that she was not aware that she had to report the drain issue to Mrs Pritchard as she had already informed Mr Joynson. She did however accept that Mrs Pritchard had told her to tell her about any issues as Mr Joynson was forgetting things. In respect of the heating incident, the claimant stated that as the club was busy dealing with funerals the matter was overlooked and it did not require intervention from Mrs Pritchard. Ms Hanakin stated that it was Mrs Pritchard who had been aggressive. Yvonne Taylor also stated that Mrs Pritchard has shouted at bar staff on many occasions and Andy Guthrie had resigned because of the committee. a. Instructing bar staff who are working and being paid by the club to go to the bookies for her: The claimant described this as ‘sour grapes’, she named two individuals Gordon Walker and Rodger; she stated that Rodger had accused her of playing the gambling machines and as a result she had a falling out with him. This resulted in the claimant returning Rodger’s money which she had been safeguarding for him (away from his father) She called him the biggest liar in the club.

b. Failing to step up to the requirements of the job description of stewardess, despite taking the salary package associated with the role: All present discussed the Stewardess job description and salary package. It was suggested that the claimant had automatically taken over after Ms Taylor went off with ill health (as had been the case over the past 20 years). The claimant also advised that Mrs Pritchard and Mr Joynson were aware of this. Ms Taylor stated that Mrs Pritchard had asked ex-stewards if they wanted to takeover her job.

c. The club receiving complaints from members regarding the claimant at closing time: The respondent stated that it believed that the claimant plays the fruit machines until the jackpot is won. However, it was unwilling to disclose the identity of the person who had made this allegation;

d. The club still receiving complaints from members and the committee regarding your sometimes abrupt and aggressive manner and members are still resigning due to your abrupt and aggressive manner: Ms Hirst read out the anonymous statement and the claimant was advised that the person wanted to remain anonymous as they were worried how she would respond. Mr Joynson advised that both he and Mrs Pritchard continued to receive complaints about the claimant’s behaviour. They did not wish to become involved in preparing statements. Ms Hirst highlighted the contents of the disciplinary outcome and final written warning that was issued by letter dated 31 August 2021. The claimant was reminded of the specific improvements that were identified at the time. f. Members still resigning due to her abrupt and aggressive manner- proven This allegation was dealt with as above.

[86]By way of letter dated 28 March 2022 the claimant was dismissed with 12 weeks notice. The outcome of the disciplinary hearing was set out within the correspondence:a. Her attitude towards the club secretary, which has failed to improve since her written warning was issued – proven

b. Instructing bar staff who are working and being paid by the club to go to the bookies for her – proven;

c. Failing to step up to the requirements of the job description of stewardess, despite taking the salary package associated with the role - proven;

d. The club receiving complaints from members regarding the claimant playing the fruit machines out of hours when it has reached its jackpot at closing time – proven;

e. The club still receiving complaints from members and the committee regarding her sometimes abrupt and aggressive manner - proven;

f. Members still resigning due to her abrupt and aggressive manner- proven. In summary it was stated “…It is the opinion of the committee that you have disregarded the requests made to you and continued to behave as you please. The committee has lost all confidence in your ability to be trusthworthy, cooperative, professional and friendly. In the circumstances, on the balance of probabilities I believe that your overall conduct has not improved since your last warning was issued, therefore your employment should be terminated with effect from today. You will not be required to work your notice of 12 weeks. This will be paid to you with your outstanding holiday pay with your final wage..”

[87]The claimant appealed the outcome of the disciplinary hearing on the following grounds: 1. I requested the attendance of the Club Secretary Janet Pritchard at my disciplinary hearing so I could question her regarding the inconsistencies and validity of the statements she has made against myself. As most of the evidence produced by yourselves in relation to the allegations made against myself have been made by Janet Pritchard, I believe this is a fundamental failure in exploring the truth. 2. Your failure to examine the evidence I presented at the hearing. 3. You did not follow the Meanwood Conservative Disciplinary policy. 4. The whole process has been biased and unfair. A more comprehensive appeal letter will follow. I felt the need to pass you an immediate response considering the seriousness of my dismissal notice.

[88]The respondent provided the claimant with a grievance appeal outcome letter dated 28 March 2022. It was concluded that after reviewing all of the evidence the findings of the original grievance hearing were upheld.

[89]The claimant submitted a substantive disciplinary hearing outcome appeal dated 31 March 2022. The headline grounds of appeal were as follows:a. Failure to follow the Disciplinary policy, the claimant remained aggrieved that the investigation meeting went ahead in her absence and she was not allowed to be accompanied by anyone;

b. She was aggrieved at receiving a final written warning in 2021;

c. None of the allegations were regarded as gross misconduct;

d. Most of the evidence came from Mrs Pritchard who is ‘quite vocal about how much she dislikes me’;

e. The failure to examine evidence that she presented at the hearing;

f. Lack of ability to question her accusers;

g. The whole process being unfair and biased against her. ‘..The main three protagonists Tracey Hirst, Ronnie Joynson and Janet Pritchard have had their heads together to manufacture a reason to dismiss me from my job. This matter should have been adjudicated by someone with no previous opinions and thereby reached an unbiased conclusion from the FACTS presented..”

[90]Ms Hirst contacted the anonymous witness on 8 April 2022 in order to ascertain further details regarding his evidence. This can be seen at page 19-19a.

[91]The disciplinary appeal hearing took place on 30 April 2022 (to accommodate the claimant). The claimant submitted a pre-prepared statement at the commencement of the hearing which challenged the grounds upon which the decision to dismiss her was made. She reiterated the arguments that she had made previously. She also provided 18 letters of support written by members which commented on her conduct in the club.

[92]The disciplinary appeal meeting notes can be seen at pages 12-12h.

[93]In the outcome letter dated 9 May 2022 (pages 10 – 10d) the claimant was advised that the allegation relating to playing the fruit machines was not upheld. This was on the basis that, whilst it was reasonable to believe that it was the claimant who used the fruit machine, ‘it was not conclusive’. Ms Gail Burns confirmed that having considered all evidence she did not uphold the claimant’s appeal on any other of the allegations and the decision to terminate her employment would remain. The claimant was reminded that she could not enter the club premises, but despite this had been seen behind the bar on three occasions.

[94]There is also an exchange of emails between Ms Hirst and Ms Burns 12 May 2022 regarding further enquiries that were made of the bookies. Ms Burns contacted the bookies and ascertained further information pertaining to the bets placed by the claimant. It was confirmed by the person who wished to remain anonymous that the claimant had been very abusive on the phone due to a mistake that had arisen and they had no choice but to terminate the call. The person also confirmed that the claimant was considered as a very good customer as she spent a lot of money on betting but she was described as ‘a really nasty person’. Whilst further enquiries were made in this regard it is not apparent if the information was provided to the claimant in advance of the appeal

[95]Mrs Burns also reported that on delivering the outcome letter to the claimant she was very abusive, shouted that ‘they are all liars” and stated that she (Mrs Burns) was the same as all the rest and that she too was a liar. I was not convinced by the claimant that her conduct has not been aggressive or demeaning; the claimant’s conduct in this regard had been referred to by Mrs Pritchard, the anonymous witness, the worker at the bookmaker as well as Mrs Burns. I do not find this to be coincidence but rather it being more likely the case that the claimant exhibits aggressive and/or hostile behaviour when things do not go her way or if she has had a falling out with someone.

[96]In order to determine the real reason for dismissal, it was critical for me to consider and evaluate the evidence of the decision maker Mr Joynson.

[97]During the Hearing Mr Joynson accepted that he suffered from short term memory loss which was age related. I found Mr Joynson to be clear and frank when giving his evidence. He was able to recall salient details and provided a response to questions that were put to him in cross examination. Mr Joynson accepted that he was seeking to dismiss the claimant in August 2021 and again in May 2022; he felt that her conduct was so serious that it constituted gross misconduct and therefore dismissal without notice pay. However, following discussion, he accepted the advice of Ms Hirst, the HR professional who was specifically employed to assist with HR matters. I found his conduct to be reasonable in the circumstances.

[98]I found that Mr Joynson did not consider misconduct to have occurred due to an accumulation of the allegations but rather focused on each individual act of the claimant. In his evidence Mr Joynson stated that he was particularly aggrieved at the conduct of the claimant towards Mrs Pritchard. He felt that this could not be tolerated especially given her seniority and the fact that steps that were being undertaken by her were to try and propel the club given the downturn that it was experiencing. It was for this reason that Mr Joynson sought to dismiss the claimant in August 2021 and it was for this reason that he found the claimant’s conduct deplorable. I found that the other allegations were seen as being secondary in comparison to the conduct of the claimant towards Mrs Pritchard.

[99]During cross examination, Mr Joynson readily accepted that he viewed this as the most serious allegation and felt he was justified in dismissing the claimant on this basis alone. Therefore, notwithstanding the many allegations listed in the Claimant’s dismissal letter, it was clear from the oral evidence that the main, or principal, reason for dismissal was the Claimant’s conduct, in particular towards Mrs Pritchard, and the untenable breakdown in the working relationship that ensued. This is described in the dismissal letter as: “[the Claimant’s] attitude towards the club secretary, which has failed to improve since her written warning was issued”.

[100]My conclusions in this judgment and in considering whether or not the dismissal was fair or unfair are therefore based on this allegation alone as I have made the finding of fact that it was the actual reason in the mind of the decision maker, Mr Joynson, at the time of the dismissal.

The Law

[101]In a claim of unfair dismissal, it is for the employer to show the reason for dismissal and that it was a potentially fair reason. One such potentially fair reason for dismissal is a reason related to conduct under Section 98(2)(b) of the Employment Rights Act 1996 (“ERA”). This is the reason relied upon by the respondent.

[102]If the respondent shows a potentially fair reason for dismissal, the tribunal shall determine whether dismissal was fair or unfair in accordance with Section 98(4) of the ERA, which provides:- “[Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case”.

[103]In a case of misconduct, a tribunal must determine whether the employer genuinely believed in the employee’s guilt of misconduct and whether it had reasonable grounds after reasonable investigation for such belief. The burden of proof is neutral in this regard see British Home Stores Ltd v Burchell

[1980] ICR 303

and Boys and Girls Welfare Society v MacDonald

[1997] ICR 693

EAT.

[104]The tribunal must not substitute its own view. The tribunal has to determine whether the employer’s decision to dismiss the employee fell within a band of reasonable responses that a reasonable employer in these circumstances might have adopted. It is recognised that this test applies both to the decision to dismiss and to the procedure by which that decision is reached.

[105]A dismissal, however, may be unfair if there has been a breach of procedure which the tribunal considers as sufficient to render the decision to dismiss unreasonable. The tribunal must have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015. In respect of the investigation where an employee admits an act of gross misconduct and the facts are not in dispute, it may not be necessary to carry out a full-blown investigation. In Boys and Girls Welfare Society v MacDonald the claimant admitted the misconduct and was dismissed. The EAT said that it was not always necessary to apply the test in Burchell where there was no real conflict on the facts.

[106]If there is such a defect sufficient to render dismissal unfair, the tribunal must then, pursuant to the case of Polkey v A E Dayton Services Ltd

[1998] ICR 142

, determine whether and, if so, to what degree of likelihood the employee would still have been fairly dismissed in any event had a proper procedure been followed. If there was a 100% chance that the employee would have been dismissed fairly in any event had a fair procedure been followed, then such reduction may be made to any compensatory award. The principle established in the case of Polkey applies widely and beyond purely procedural defects. Guidance on how to approach that issue is set out in the case of Software 2000 Ltd v Andrews

[2007] IRLR 568

. Exception to Polkey

[107]However, in Polkey v A E Dayton Services Ltd

[1998] ICR 142

it was also stated that if an employer could reasonably have concluded that a proper procedure would be ‘utterly useless’ or ‘futile’, it might well be acting reasonably in not putting one in place. This would be a matter for the tribunal to consider in the light of the circumstances known to the employer at the time of the dismissal.

[108]The determination of reasonableness is a question of fact and the focus must be on what the employer has actually done. Thus, the tribunal must ask whether an employer, acting reasonably, could have failed to follow a proper procedure in the given circumstances Duffy v Yeomans and Partners Ltd

1995 ICR 1

, CA.

[109]Cases where it has been held that the circumstances were exceptional enough to ‘excuse’ the employer from following the proper disciplinary procedure include MacLeod v Murray Quality Foods Ltd EAT 290/90, Campion v Emsec Security Ltd ET Case No.1800834/17 and Gallacher v Abellio Scotrail Ltd EATS 0027/19

[110]Under Section 122(2) of the ERA any basic award may be reduced when it is just and equitable to do so on the ground of any kind conduct on the employee’s part that occurred prior to the dismissal. In addition, the tribunal shall reduce any compensation to the extent it is just and equitable to do so with reference to any blameworthy conduct of the claimant and its contribution to his dismissal – ERA Section 123(6). There is no requirement for the conduct or action of the claimant in question to amount to gross misconduct for it to be relevant conduct or action for the purposes of s122 or s123 ERA 1996. All that is required is for the conduct to be culpable, blameworthy, foolish or similar and this includes conduct that falls short of gross misconduct, and need not necessarily amount to a breach of contract. In Hollier v Plysu

[1983] IRLR 260

the EAT suggested broad categories of reductions: 100% where the employee is wholly to blame; 75% where the employee is mainly to blame; 50% where the employee is equally to blame and 25% where the employee is slightly to blame. Final written warning

[111]There is a dispute in this case over whether or not prior warnings given to the claimant should have been relied upon by the respondent. The leading case on this issue is the decision of the Court of Appeal in Davies v Sandwell Metropolitan Borough Council

[2013] IRLR 374

, in which Mummery LJ held that it was legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it was not manifestly inappropriate to issue it. He further explained that, in answering the question of whether a dismissal was fair, it was not the function of the employment tribunal to reopen the final warning and rule on an issue raised by the claimant as to whether it was a legally valid warning or a nullity. The function of the tribunal was to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance which a reasonable employer could reasonably take into account in the decision to dismiss the claimant for subsequent misconduct.

[112]The decision of the Employment Appeal Tribunal in Wincanton Group plc v Stone [2013] ICR D6 (which pre-dates the Court of Appeal decision in Davies but does refer to the EAT decision in that case which the Court of Appeal upheld) is also relevant, in which the then-President of the EAT, Langstaff J, summarised the general principles to be applied by the tribunal in respect of earlier warnings when determining the fairness of a dismissal:112.1 The tribunal should take into account earlier warnings issued in good faith and with prima facie grounds for making it, but if the tribunal considers that a warning was issued in bad faith or without prima facie grounds, it will not be valid and cannot be relied upon by the employer;

112.2 The tribunal should take account of any proceedings, such as internal appeals, that may affect the validity of the warning, and give them such weight as it considers appropriate;

112.3 The tribunal may not go behind a valid warning to hold that it should not have been issued or that a lesser category of warning would have been appropriate;

112.4 The tribunal will not be going behind the warning where it takes into account the factual circumstances giving rise to it. There may be a considerable difference between the circumstances giving rise to the first warning and those considered later. Just as a degree of similarity will tend to favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way;

112.5 The tribunal may also take account of the employer’s treatment of similar matters relating to other employees, since this may show that an employer has subsequently been more or less lenient in similar circumstances; and

112.6 The tribunal must remember that a final written warning always implies, subject only to any contractual terms to the contrary, that any subsequent misconduct of whatever nature will usually result in dismissal. Submissions

[113]Both parties were given the opportunity to provide oral and written submissions. Mr Taylor sought to rely on oral submissions whilst I was directed to written submissions which were supported by oral submissions by Mr Ryan. I do not intend to rehash the submissions for the purposes of the judgment; Mr Ryan focused on the allegation that Mr Joynson had considered the most serious and the actual reason for dismissal. Mr Ryan contended that there was a irretrievable breakdown in relationship between the claimant and Mrs Pritchard which wholly contributed to the respondent losing trust and confidence in her; such breakdown resulting from the Claimant’s misconduct.

[114]Mr Taylor, on the other hand, referred to what he perceived as an inherent unfairness to the procedure adopted by the respondent and the lack of clarity in respect of the allegations.

[115]During his oral submissions Mr Ryan suggested that I do not preoccupy myself with ‘labels’ when considering the reason for dismissal and instead my focus be better directed on the issue of whether there was a breakdown in relationship. Whilst I acknowledge the point being made, I simply state that the Respondent is required to establish a potentially fair reason within the legal framework and this necessarily involves attaching a label to the reason for dismissal. Conclusions Application of the law to the facts

Conclusions

[116]Applying these principles to the facts as found, I reach the following conclusions. Unfair dismissal

[117]The respondent alleges conduct as its primary reason for dismissing the Claimant. It is for the respondent to establish the reason for dismissal. As set out above I found Mr Joynson to be a credible witness who provided consistent evidence. He accepted that he found the claimant’s conduct towards Mrs Pritchard to be of upmost concern and dismissal was justifiable on that basis alone. He had reviewed a number of statements provided by Mrs Pritchard detailing a catalogue of events that had occurred between the two over a period of circa 5 months. Mr Joynson dismissed the claimant on the basis of the claimant’s conduct towards Mrs Pritchard which he found had led to an irretrievable breakdown in trust and confidence, against the background of the Claimant having already been issued with a final written warning.

[118]Mrs Pritchard had provided a number of statements relating to the conduct of the claimant. The respondent’s witness Mr Joynson gave a clear and straight forward account of what he did in investigating the issues. I am satisfied that he carried out a detailed and thorough investigation into the matters he had to consider. The claimant asserted that it was Mrs Pritchard who did not speak to her which is not plausible given her role of secretary and the fact that she was specifically asked to liaise with bar staff. The claimant also accepted that she had not informed Mrs Pritchard of issues within the club (i.e. drains) despite being instructed to do so and it was apparent that she did not enjoy a healthy relationship with her. There was also ample evidence of the claimant’s attitude and demeanour which was supported by other witnesses. This was set against the backdrop of a similar allegation being made in the past year. I was not convinced by the claimant that her conduct has not been aggressive or demeaning; the claimant’s conduct in this regard had been referred to by Mrs Pritchard, the anonymous witness, the worker at the bookmaker as well as Mrs Burns.

[119]The respondent set out clearly the allegation that the claimant faced and provided her with evidence in advance of any meetings. There was evidence if he accepted it, which he did, that pointed Mr Joynson to the claimant being guilty of misconduct in the manner alleged. The claimant handled the disciplinary and grievance processes in an obstructive and uncooperative manner which were further evidence for Mr Joynson that the allegations of misconduct levelled at the Claimant were very likely to be true.

[120]I found that the respondent genuinely believed that the claimant had committed an act of misconduct and that her employment was terminated for that reason.

[121]I am not convinced that the claimant who gave her evidence in this case passionately and in my view honestly has shown that there was a conspiracy of sort, or that a vendetta on part of Mrs Pritchard was the reason for the claimant’s dismissal as opposed to the genuine belief by Mr Joynson that the claimant was guilty of misconduct.

[122]I then turn to the question of whether the respondent acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant.

[123]The reasonableness of the investigation, the reasonableness of the grounds for believing in misconduct and the fairness of the procedure all overlap and I consider them together. I make the following observations:123.1 The respondent conducted an investigation, the evidence of which, including witness statements, were sent to the claimant;

123.2 The details of the allegations against her were explained to the claimant and she did have the opportunity to and did respond;

123.3 The procedure that was followed by the respondent in my view was a process that a reasonable employer could consider appropriate. The claimant’s grievance was considered at the same time as cross allegations about the claimant were considered. The grievance was concluded prior to determination of the disciplinary process. The disciplinary process engaged with the claimant and invited her to provide a response to the allegations against her. The claimant’s approach to the investigation and disciplinary hearing was selfdefeating;

123.4 The claimant says that the procedure that the respondent followed was unfair. In particular, a feature of her complaint is that she should have been allowed to be accompanied to the investigatory meeting. I have dealt with this issue above – I do not expect that the claimant had a legal right to be accompanied. Whilst the introduction of the disciplinary policy is confusing, the section ‘right to be accompanied’ clearly states the position in this regard;

123.5 The claimant alleges that Ms Hirst, Mrs Pritchard and Mr Joynson were intent on dismissing her. I do not find any evidence to support this; the grievance and disciplinary processes were heard and determined independently of each other and adverse findings were also made against Mrs Pritchard. I found no involvement of Mrs Pritchard in the decision making of either processes;

123.6 The respondent was extremely flexible in its approach despite the disruptive nature of the claimant. It was prepared to rearrange meetings and went as far as scheduling a further investigatory meeting given the claimant’s protests.

123.7 The claimant was informed in writing, as required by the ACAS code, of her right to appeal. Correspondence was exchanged between the parties pertaining to the dismissal and an Appeal was held.

[124]The ACAS code is not a prescriptive statute. It sets out a standard of behaviour that employers ought to have regard to and informs a tribunal’s assessment as to the fairness of the employer’s decision to dismiss. The code itself at paragraph 3 acknowledges that it sometimes may not be practical to follow all steps. It does also say that whilst in cases of gross misconduct it may be appropriate to dismiss without prior warning or notice, a fair disciplinary process should always be followed. In this case, whilst Mr Joynson made a finding of gross misconduct the claimant was dismissed with notice pay. Final written warning

[125]I must also consider whether or not it is appropriate to take into account the prior warning on the claimant’s record. I am satisfied on the evidence that the warning given in August 2021 was given in good faith and with prima facie grounds for it being given.

[126]In this case it is important to bear in mind that the final written warning was given to the claimant in respect of a number of allegations pertaining to her conduct (as set out above) and the claimant did not seek to challenge and/or appeal that decision.

[127]She consequently raised a grievance a few months later and this supports the view that the claimant was fully aware that if she was unhappy/did not agree with the respondent she could challenge this. Further, it was the claimant who elected not to partake in the process as a whole, both during the investigation or disciplinary phase despite being faced with serious concerns regarding her conduct at work. The respondent did not in my view take a knee jerk reaction and instead provided flexibility to allow the claimant to attend the hearing (having rescheduled it on more than one occasion). She was also advised of her right to appeal the decision if she did not agree with this. The claimant elected not to submit an appeal in respect of the findings made against her. A final written warning for what was therefore in my view a proportionate sanction bearing in mind the nature of the allegations relating to misconduct at work. I am therefore satisfied that the previous formal warning, which remained live, had been issued in good faith, there were prima facie grounds and there was nothing to suggest that the previous warning was manifestly inappropriate such that further enquiry was required.

[128]Moreover, they are concerned with similar factual circumstances to the conduct relied upon for dismissal (relating to the claimant’s behaviour at work) and are therefore of clear relevance. Accordingly, I find that Mr Joynson was justified in taking account of the prior warning (and the conduct that led to those warnings) in making his decision in the disciplinary process.

[129]I note the point made in Wincanton that a final written warning always implies, subject only to any contractual terms to the contrary, that any subsequent misconduct of whatever nature will usually be met with dismissal, and only exceptionally will dismissal not occur. The claimant was on a valid final written warning and, as I have found Mr Joynson had a genuine belief on reasonable grounds following a reasonable investigation that she was guilty of further misconduct. In those circumstances, I consider that dismissal was plainly within the range of reasonable responses available to the respondent. As Mr Joynson explained in oral evidence, he was not looking at the allegations as a collective but specifically highlighted that the isolated incident regarding the claimant’s attitude towards Mrs Pritchard justified dismissal. I have reminded myself that it is not for me to substitute my view, either as to procedure or as to substance. On balance, given the findings of fact above, I find that in the circumstances the decision to dismiss was a reasonable decision in the circumstances, taking all into account, having regard to the test in s98(4),