Employment Judge RussellMs H Ifeka (instructed by Counsel) for claimantMr S Peacock (instructed by Solicitor) for respondentDate 26 July 2024
JUDGMENT
The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed. JUDGMENT having been sent to the parties on 31 July 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]Oral reasons were given at the conclusion of the hearing on 26 July 2024. On 02 August 2024 the Respondent requested written reasons. The request for written reasons was sent to Employment Judge Russell on 26 September 2024.
Introduction
[2]By way of a Claim presented on 10 January 2023 the Claimant brings a complaint of unfair dismissal. Early conciliation began on 29 December 2022 and ended on 09 January 2023. By way of a response dated 07 February 2023 the Respondent defends the Claim.[3]I received written witness statements from the Claimant and, for the Claimant, from Luke Harris. For the Respondent I received witness statements from Salim Koheeallee and Helen Worfell. All witnesses were questioned on their evidence. I had a digital bundle of 172 pages. I considered only those pages I was taken to. References to page numbers are in square brackets. I was assisted by the clear oral and written submissions of Ms Ifeka and Mr Peacock.[4]The hearing was conducted via video. I was satisfied that both parties could participate fully in proceedings. Applications[5]I determined two applications at the outset of the hearing. These were an application by the Respondent to rely on a witness statement from Helen Worfell and an application by the parties to rely on CCTV evidence. I allowed both applications and gave full oral reasons for doing so. I was satisfied that viewing the video evidence was relevant and necessary for a fair disposal of proceedings. With regards to the application to rely on a witness statement by Helen Worfell prepared after statements had already been exchanged, I was satisfied that the evidence was relevant and would assist the Tribunal in dealing with matters fairly and justly. Claimant’s counsel took a pragmatic view that, notwithstanding the fact that the statement had been prepared after exchange had taken place, she could deal with the evidence set out in the statement during the hearing. On this basis, I allowed the statement to be admitted.
Issues
[6]The issues the Tribunal had to decide were agreed with the parties at a preliminary hearing before EJ McGrade on 09 March 2023 [34]. I confirmed these with the parties at the outset of the hearing.[7]The Respondent accepts that the Claimant was dismissed. The Claimant accepts that the reason for dismissal was conduct, which is a potentially fair reason for the purposes of sections 98(1) and (2) of the Employment Rights Act 1996.[8]The remaining issue for me to decide was agreed as: Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether:(i) There were reasonable grounds for that belief;(ii) At the time the belief was formed the Respondent had carried out a reasonable investigation;(iii) The Respondent acted otherwise in a procedurally fair manner. The Claimant relies upon the failure of the Respondent to disclose video evidence, which he believes was relied upon by the dismissing officer, inconsistencies in the accounts given by the witnesses and the absence of a note-taker at the fact-finding interview;(iv) Dismissal was within the range of reasonable responses.
Findings
[9]I make findings only in respect of those matters that are necessary for me to determine the Claim.[10]The Claimant was employed by the Respondent from 06 June 1988 until his dismissal on 07 December 2022. The Respondent is the UK’s mail delivery service. The Claimant’s contract of employment dated 12 May 1988 records that he was a Postman [47]. At the time of his dismissal he was employed as a postal worker on Operational Postal Grade and worked at the Mount Pleasant Mail Centre. A range of activities are carried out at Mount Pleasant including processing, sorting, and dispatching mail.[11]In addition to employees, casual workers are also engaged by the Respondent to work at Mount Pleasant. There are four shift patterns. These are earlies, lates, nights, and weekends. Around 700 people work at Mount Pleasant across the four shift patterns.[12]At the time of his dismissal the Claimant worked on Friday and Saturday nights from 6pm until 8am. He has been a CWU representative for around 10 years. Until this incident he had an unblemished disciplinary record for over 34 years. Policies[13]The Respondent has a written Conduct Policy, which outlines the approach that will be taken if an employee does not meet the expected standards of conduct and behaviour [72]. The list of what the Respondent considers Gross Misconduct is not exhaustive [77]. It includes abusive behaviour to colleagues.[14]The Respondent’s Conduct Policy contains a process for precautionary suspension [75]. It should only be considered when a serious incident occurs or is reported to a manager. It should only last as long as necessary. The main circumstances in which it may be used are alleged inappropriate behaviour, alleged serious breach of conduct, or where there is a reasonable belief that an investigation may be hampered if the employee remains at work. This list is not exhaustive. I find that allegations of unwanted contact between colleagues could fall under inappropriate behaviour.[15]Under the process for precautionary suspension there is provision for a 10- minute ‘cooling off period’ for an employee to reconsider their actions. This applies where an employee has refused to carry out a reasonable instruction.[16]If an employee is suspended, the suspension must be kept under review. This should first be done after 48 hours then on a weekly basis [75]. The review should take into account the seriousness of the issue and the continued risk to the business.[17]In addition to the Conduct Policy, the Respondent has a set of Business Standards [61]. These set out expectations of behaviour from the Respondent and from employees. The Claimant was given a copy of these in March 2021. He accepted that the First Principle of these standards is that colleagues should be treated with courtesy, dignity and respect regardless of the circumstances. He also accepted that the allegation against him was potentially serious and, if true, would be in breach of these business standards.[18]In addition to its general conduct policy, the Respondent has a separate document setting out the approach to managing conduct issues where they concern trade union representatives [58]. CCTV evidence[19]The alleged incident that led to the Claimant’s dismissal occurred on the morning of Saturday 01 October 2022. It was captured on CCTV footage, which records the incident at 09:41. The complainant notes that it happened at 10:40. In a later note made by Mr Koheeallee, the dismissing manager, he notes the time as 10:50. The precise timing is not material. There was no doubt between the parties about the incident at the heart of these proceedings.[20]The CCTV footage was sent to the Claimant by the Respondent as part of disclosure in these proceedings following an order made by the Tribunal. It was also before me and was watched during the hearing.[21]Turning to what the CCTV evidence shows of the incident, it is not the role of the Tribunal to determine whether the Claimant did the act complained of. What matters is what the employer reasonably believed, whether that belief was genuine, and whether at the time of forming that belief a reasonable investigation had been carried out.[22]With that in mind, I record here my findings of what the CCTV footage played at the Tribunal shows. There is a clip of 16 seconds’ duration. The viewer is behind a picket line. In front of the viewer to the left of the screen is a railing or fence with a large placard propped against it. The parties accepted that the Claimant is standing with his back to the placard. This blocks the viewer’s view and so the Claimant cannot be seen at the start of the clip. There appear to be at least 9 individuals on the screen, 8 men and 1 woman on the far right. There are possibly others who cannot be seen due to the placard. They are standing in groups. On the right there appear to be 4 individuals standing in a small circle. In the centre there are at least 4 individuals who are looking in the general direction of the placard. There is another individual on the far left of the screen.[23]Around 7 seconds into the clip a woman approaches from the far left. She is the complainant. She passes the individual standing on the far left, with that individual to her right. The left arm of another individual, accepted as the Claimant, is then extended straight and to the left of his body with his back to the viewer. One second later, the right arm of the woman, the complainant, reaches across the Claimant’s back at shoulder height. The Claimant’s left arm appears to be placed at, or around, the complainant’s shoulder. This is all that can be seen of the contact between the Claimant and complainant due to the placard.[24]The complainant is later seen coming into view at 13 seconds into the clip, when she has walked at right angles to the viewer across the area obscured by the placard. She turns right to walk towards the camera in the direction of a door into the workplace. As she comes into view, she appears to have a phone in her hands, which she is holding with both hands. She then lifts her left hand to the centre of her face in what appears to be a palm-upward motion with the phone in her right hand. There is no dog visible in the footage. The incident[25]On the morning in question the Claimant was on an official picket line at the entrance to the Mount Pleasant centre. The complainant, a casual worker, passed the picket line on the way to work. She described what happened in a handwritten note headed 01/10/2022 10:40am [90]: “I was walking back from break and there was a group of staff outside the entrance. One man, who I usually see everytime I work on Saturdays, greeted me with ‘hello darling’ and put his arm out and then he kissed me on my cheek in front of everyone which was very unexpected and made me feel very uncomfortable. He usually says hello to me on my shifts but never anything more than that. It made me uncomfortable as he is much older than me and we have never spoken outside of work or beyond saying hello. I believe the other people there would be able to say they saw the immediate shock on my face and a manager then found me crying in the staff room. I am 21 and I believe he is much older”.[26]It was not known who the manager or colleague was who found the complainant in the staff room.[27]Toni Jeffryes is the early shift manager. She was not a witness in these proceedings. Mr Koheeallee, a late shift manager and the disciplinary hearer, was not working on the day of the incident. His evidence was that a colleague noticed the complainant crying and raised the matter with Ms Jeffryes. I find that the complainant was crying about the incident, that this was spotted by another colleague, and that the matter was then raised with Toni Jeffryes.[28]Lloyd Harris works for the Respondent. At the time of the incident he was Branch Secretary of the CWU and had been for 15 years. On 01 October 2022 he was acting as a picket supervisor and the Claimant was acting as CWU rep. Shortly after the incident, Mr Harris was telephoned by Toni Jeffryes. She told him that there had been an alleged incident on the picket line concerning the Claimant. Mr Harris was not on the picket line when Ms Jeffryes called him. He returned to the picket line and asked the Claimant to leave. I accept the Claimant’s account that he was told to leave around 30 minutes after the incident happened. I therefore find that it was in that intervening half hour period that the complainant had been found crying, that the matter had been reported to Toni Jeffryes, and that she had telephoned Mr Harris.[29]Mr Harris only told the Claimant that there had been an allegation that some sort of incident had taken place and asked him, in his capacity as picket supervisor, to leave the picket line. The Claimant then left. At that point, the Claimant had not understood what the incident was about. I reach this finding because of Mr Harris’ unchallenged written account that the Claimant appeared to be in shock as he left and did not understand what the alleged incident related to. Sending home on 07 October 2022[30]Mr Koheeallee works late shifts from 2pm to 10pm Mondays-Fridays. He was told of the incident at some point during the week beginning Monday 03 October 2022 by Toni Jeffryes. She gave Mr Koheeallee a written note of her account of the incident during the week beginning 03 October 2022. I find this for two reasons. First, in a later fact finding meeting, a statement by Toni Jeffryes is mentioned as ‘Appendix 2’ [105]. Second, in his oral account to the Tribunal, Mr Koheeallee said that he was handed a document by Toni Jeffryes and, specifically, that this was not the handwritten note of the complainant. It was another document. Mr Koheeallee later appeared to resile from this comment. He said that all he had been told at the time was that an incident had taken place between the Claimant and a casual worker, that he had to see the Claimant about this, seek his explanation, send him off for a cooling off period, and get the investigation going. The statement from Ms Jeffryes (Appendix 2) was not before the Tribunal.[31]Mr Koheeallee was the shift manager on the evening of 07 October 2022. This was the Claimant’s first time at work following the incident. Shortly after the Claimant’s shift started, Mr Koheeallee met with him at 18.10. Mr Tijani, a CWU union representative, was also present [92]. Mr Koheeallee told the Claimant that there was an alleged incident involving him and a ‘female casual at approximately 10:50 on Saturday 1st October’ [92]. He asked the Claimant to tell him what happened. In the Claimant’s written evidence to the Tribunal, he says that he exchanged a cheek to cheek air kiss.[32]On 07 October 2022 the Claimant told Mr Koheeallee that the complainant was walking towards him, smiling, laughing and waving at him. He said that she extended her right arm, he extended his left, and that they became, in his words, ‘face to face’. The Claimant asked her if she was ok and she said she was fine. She then walked into the building. He was asked if that was all that happened and he confirmed that it was. The Claimant did not, at that time, say that there had been an air kiss. He did not, at that time, say that he said ‘hello darling’.[33]The Claimant was sent home by Mr Koheeallee for what was described as a ‘cooling off period’ [92]. I find that while these words were used, this was not the cooling off period referred to in the Respondent’s Conduct Policy, which is only for 10 minutes and in circumstances where there has been a refusal to follow a reasonable instruction [76]. Notwithstanding the apparent misdescription of the sending home as a ‘cooling off period’, I find that the Claimant was sent home on the evening of 07 October 2022 and was placed on precautionary suspension the following day, 08 October 2022, by Toni Jeffryes [93]. The reason given was ‘the severity of the allegations of sexual harassment and unwanted physical contact regarding the incident on Saturday 1st October’ [94].[34]The Claimant’s precautionary suspension was reviewed on 08 November 2022 by Toni Jeffryes [127]. This was one month after he had first been suspended. It was reviewed again on 15 November 2022 [132] and 22 November 2022 [138]. Fact find interview – 12 October 2022[35]John Simkins was, at the time of the incident, the CWU divisional representative. Atlaf Patel, another late shift manager and the fact finding interviewer, telephoned him on 10 June 2022 to inform him of the allegations against the Claimant. He followed this up with a letter dated 11 October 2022 confirming the conversation [102].[36]A fact finding interview was carried out with the Claimant by Atlaf Patel on 12 October 2022 [103]. The Claimant was represented at that meeting by Lloyd Harris. There was no separate note-taker present. The Claimant was told that notes would be made to capture the important points, a summary would be sent to him, and that he could amend them if necessary.[37]During the fact finding interview the Claimant explained that he did not know the complainant’s name. She would occasionally wave at the Claimant in work and he would wave back.[38]The Claimant had not been provided with the complainant’s statement in advance of the meeting. This was read to him at the meeting. A statement of Mr Koheeallee was also read. I find, on balance, that the statement of Mr Koheeallee is his note made of the meeting with the Claimant on 07 October 2022 [92].[39]The Claimant was asked whether he had kissed the complainant on the cheek. He replied that it was a cheek to cheek air kiss. He was asked whether it was appropriate to hold hands with a colleague. There was no mention of holding hands in the complainant’s statement. The Claimant explained that there had been no holding hands. He explained in his amended notes of the meeting that his hands had never enveloped the complainant [122]. The Claimant accepted that he would sometimes say ‘hello darling’ to colleagues.[40]I find that the fact finding manager had looked at the CCTV footage. He made specific references in the meeting with the Claimant to what can be seen in the video. He relied on matters that could be seen in the footage but that were not described in the complainant’s note, particularly his observation of the complainant wiping her cheek. The Claimant asked to see the footage. He was not given the opportunity to do so. The fact finding manager also referred to a statement made by Toni Jeffryes [105]. This is the statement that I find was given to Mr Koheeallee and was not before the Tribunal.[41]The Claimant offered to apologise to the complainant during the fact finding meeting. He accepted that calling someone ‘darling’ may not have been appropriate. His representative asked if the complainant could be contacted to clarify the nature of the contact and specifically whether it was an air kiss. There is no record of the complainant having been spoken to as part of the fact finding investigation. Witness statements as part of investigation[42]Following the fact find meeting, Atlaf Patel interviewed three additional witnesses: Sean Barber, Mustak Patel, and Imtiyaz Chawan. The Claimant denied that Sean Barber was on the picket line at the time of the alleged incident. He says he is bolstered in that view because Mr Barber had a dog with him and no dog can be seen in the CCTV footage [110-111]. The Claimant accepted under cross examination that the CCTV does not categorically rule out Sean Barber being there. The Claimant and Sean Barber have worked together for over 20 years. There have never been any issues between them. Mr Harris was clear in his oral account to the Tribunal that he had no reason to consider that Mr Barber was being anything other than truthful when asked of his recollection of what happened on the picket line.[43]Sean Barber said that he was ‘walking back from the centre gate…whilst at the SE doors round the corner’ he waved at Mustak Patel on the picket line. It is not clear precisely where he was in relation to the Claimant. He saw what he described as a ‘young lady’ walking towards the door and ‘Andy got hold of the young lady by putting his arm round her and kissed her’. He said that he did not think anything of it at the time.[44]I find, on balance, that Sean Barber was present and saw the incident. His own account of where he was in relation to the picket line is unclear but his account is consistent first with Mustak Patel being there; and second with what the complainant describes. In the absence of any explanation as to why Mr Barber would make up this account, I find that the most plausible explanation is that he was there.[45]Mustak Patel described seeing ‘Andy kiss the young lady on the cheek and greeting her’. He was unsure about whether he saw the Claimant’s arms around her [115-116]. Imtiyaz Chawan was spoken to but he was not aware that the incident had taken place [112]. In sum, the fact find manager had two witness accounts that both said that the Claimant had kissed the complainant.[46]The Claimant made several amendments to the notes of the fact find meeting, which were not accepted by the Respondent [126].[47]On 08 November 2022 Mr Harris met with Atlaf Patel and the CWU divisional representative, Mr Simkins. This is customary in conduct cases involving trade union representatives. It is provided for in the specific conduct policy for trade union representatives [58]. The Claimant was not present at the hearing. Mr Harris asked for the CCTV footage. This was refused. Disciplinary hearing[48]A disciplinary hearing was held on 29 November 2022. This was originally intended to be on 18 November 2022 [135-6]. The Claimant was sent the invitation letter on 15 November 2022 and was unable to attend due to being unable to arrange representation in time. He telephoned Mr Koheeallee to inform him of this. On 21 November 2022 he received a letter from Mr Koheeallee to say that if he did not hear from the Claimant, he would have no choice but to decide the case in his absence [137]. Mr Koheeallee accepted in his oral account that the Claimant had telephoned him and given a satisfactory reason why he could not attend the disciplinary hearing on the original date.[49]The Claimant attended a disciplinary hearing on 29 November 2022 [141]. He was represented by Mr Harris. Mr King, Production Supply Manager, was present as a note-taker.[50]Mr Koheeallee had read the statements of Mustak Patel and Sean Barber, and the notes of the fact finding meeting. The Claimant again asked for the CCTV footage. Mr Koheeallee said that he had not used the CCTV footage and that it was not relevant. Mr Koheeallee was asked whether had seen the CCTV evidence. His answer to this in the disciplinary hearing is not clear and unequivocal. He said that it was not relevant. He said that he was not taking the footage into account. Mr Koheeallee was clear in his oral account to the Tribunal that he had not seen the footage at the time. On balance, I find that Mr Koheeallee had not seen the CCTV footage at the time of the dismissal. In his view, there was sufficient evidence within the witness statements for him to reach a conclusion on the matter. He was clear in his oral account that, having now seen the CCTV footage, it would not have changed his view.[51]At the disciplinary meeting the Claimant accepted that there was an air kiss between him and the complainant. He maintained his position that there had been no physical contact in the form of an actual kiss. He said that the complainant had walked towards him with her arm out.[52]The Claimant was dismissed on 07 December 2022 with immediate effect [149]. This was confirmed in a letter dated 08 December 2022. Mr Koheealllee concluded that the Claimant’s behaviour fell within the range of conduct that could be described as Gross Misconduct. He considered a lesser sanction of suspended dismissal, which is action short of dismissal. He concluded that this was not appropriate. He said that the Claimant had shown no remorse [156]. He did not consider that the Claimant was sincere in his offer of apology. He did not relay the apology to the complainant. He considered that the Claimant should have known better given his length of service.[53]In his decision letter Mr Koheeallee recounts the events that occurred, which were clearly in his mind at the time of the decision. There are inaccuracies in this record. He writes of how the complainant, ‘in her words, felt disgusted and embarrassed’ [153]. Her handwritten note does not use the word disgusted. She says she felt uncomfortable. He places reliance on Sean Barber’s account but this is not accurately portrayed in the decision letter. Mr Koheeallee describes Sean Barber as observing the Claimant to kiss the Claimant on both cheeks [153]. This was not what Sean Barber told the fact finding manager. Appeal and Lord Falconer review[54]The Claimant appealed his decision on 08 December 2022 [158]. The Respondent has a separate National Appeals Procedure (NAP) in place for conduct cases involving trade union representatives. It provides for a panel of three persons (an independent legally qualified chair, CWU rep, and HR rep) to determine the appeal.[55]At the time of the Claimant’s dismissal, there was an ongoing, high-profile industrial dispute between the Respondent and the CWU. There were between 300-400 cases of alleged misconduct arising from the industrial dispute. Due to the nature of the dispute and concerns on the part of the trade union about impartiality, an independent review process was established to consider cases of alleged misconduct by CWU reps and members arising out of the dispute. A joint statement dated 28 February 2023 between the Respondent and CWU confirmed that there would be an independent review of these cases [160]. The terms of reference set out the purpose of the review and that Lord Falconer would be appointed to adjudicate these cases. The terms of reference make clear that individuals have a choice whether to use the review process or the internal appeal process [160]. On 24 May 2023 the Claimant opted to have his case considered as part of the Lord Falconer review in lieu of an internal appeal [164].[56]All NAP appeals were on hold while the terms of reference for the independent review were being agreed. Mr Harris was aware of this. The Claimant says that he was not. On balance, I find that the Claimant (as a CWU representative) would reasonably have been aware that the appeal would be paused while the terms of this review were being agreed. This is particularly so when his representative was also aware of the process.[57]Lord Falconer was not a witness in these proceedings. No witness could say for certain what Lord Falconer had considered in his review. He decided the case on the papers, based on submissions from the Respondent and CWU. There is no record of what evidence, including CCTV footage, was before him. It appears that he had, however, considered the CCTV evidence. I have formed that view based on his findings in which he states ‘it is clear from the CCTV footage that you did put at least one arm fully round [the complainant]’.[58]The Claimant received a letter from the Respondent on 09 November 2023 stating that Lord Falconer had upheld the decision to dismiss him [165]. In Lord Falconer’s view, it was fair and reasonable for the Respondent to impose the sanction of summary dismissal in these circumstances.
Law
[59]Section 94 of the Employment Rights Act 1996 provides that an employee has the right not to be unfairly dismissed. In determining whether the dismissal is fair or unfair, section 98(1) of the Employment Rights Act 1996 provides that it is for the employer to show the reason for the dismissal. This is “a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee" (Abernethy v Mott, Hay and Anderson [1974] ICR 323). Potentially fair reasons under section 98(2) include the conduct of the employee.[60]If the Tribunal is satisfied that the Claimant was dismissed for a potentially fair reason, it must consider whether the Respondent acted fairly or unfairly in dismissing for that reason. It must consider whether the dismissal was fair in all the circumstances, within the meaning of section 98(4) of the Employment Rights Act 1996. That provides that whether a dismissal is fair or unfair “depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating [the reason] as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and substantial merits of the case".[61]The Tribunal must not substitute its own views (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, HSBC Bank plc v Madden [2000] ICR 1283, London Ambulance Service NHS Trust v Small 2009 IRLR 563). It is immaterial how the Tribunal would have handled the events or what decision it would have made. The test of whether an employer acted reasonably is an objective one.[62]In misconduct dismissals, there is well-established case law on the correct approach to fairness within section 98(4), namely BHS Limited v Burchell 1980 ICR 303 and Post Office v Foley; HSBC Bank plc v Madden 2000 ICR 1283. In deciding whether the Respondent acted reasonably in all the circumstances, the Tribunal will decide whether the Respondent genuinely believed that the Claimant had done the acts complained of, whether there were reasonable grounds for that belief, and whether at the time the belief was formed the Respondent had carried out a reasonable investigation. I have also reminded myself of the ACAS Code of Practice on Disciplinary and Grievance Procedures and that the Tribunal must consider whether the procedure followed by the Respondent was a fair and reasonable one. Common errors leading to unfairness might include deciding the case on evidence that is not shown to the employee, failing to make further enquiries after a disciplinary hearing, or failing to go back to the claimant with the result of those enquiries before taking the final decision.[63]In deciding whether the Respondent acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the range of reasonable responses open to an employer in these circumstances. I reminded myself that I must not fall into the trap of substituting my own view for that of the employer. Where it is a dismissal for gross misconduct the Tribunal has to be satisfied that the employer acted reasonably both in characterising it as gross misconduct, and then in deciding that dismissal was the appropriate punishment: Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854. The employer should consider any mitigating factors.[64]If a Tribunal concludes that the Claimant had been unfairly dismissed, it may consider whether any adjustment should be made to the compensation on the grounds that if a fair process had been followed by the Respondent in dealing with the Claimant’s case, the Claimant might have been fairly dismissed in any event (Polkey v AE Dayton Services Ltd [1987] UKHL 8).[65]A Tribunal may also consider whether there should be adjustments made to the basic and compensatory awards because of the Claimant’s conduct. Under section 122(2) of the Employment Rights Act 1996, ‘where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce the amount of the basic award’, the basic award should be reduced accordingly.[66]Under section 123(6) ‘where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding’. Such conduct on the part of the Claimant must be culpable or blameworthy (Nelson v BBC (No.2) 1980 ICR 110, CA).
Conclusions
[67]The Respondent accepts that it dismissed the Claimant by terminating the contract under which he was employed. This is a dismissal for the purposes of section 95(1)(a) of the Act. The Claimant accepts that his conduct was the reason for the dismissal. I accept Mr Koheeallee’s evidence that he considered the Claimant’s behaviour towards the complainant to have been unacceptable and in breach of the Respondent’s business standards. Misconduct is a potentially fair reason for dismissal under section 98(2) of the Act. I conclude therefore that the Claimant was dismissed for a potentially fair reason, namely his conduct.[68]I accept that the Respondent had a genuine belief that the Claimant was guilty of misconduct. I also accept that there were reasonable grounds for the Respondent to form that belief. Mr Koheeallee had a signed, handwritten statement from the complainant about what had happened. The complainant’s version of accounts is not dissimilar to that of the Claimant’s. Both accept that he said ‘hello darling’. Both say that he put his arm out. Her account does not say that she put her arm out but does record that the incident was unexpected. She describes feeling uncomfortable and being found by a manager crying.[69]Mr Koheeallee also had witness statements from two colleagues who claimed to have witnessed the incident. On balance, faced with the account of the complainant, statements from witnesses who supported the complainant’s version of events, and the Claimant’s own account that there was an encounter (albeit he said an air kiss rather than a kiss) there were reasonable grounds for the belief that the Claimant was guilty of misconduct. Mr Koheeallee’s evidence was also clear about why he dismissed. The dismissal letter records his conclusion that there was unwanted behaviour that he characterised as sexual harassment. The appeal letter, in respect of the reason for the dismissal, is consistent with what is said in the dismissal letter.[70]The Respondent did not, however, at the time the belief was formed, carry out a reasonable investigation. When judging the reasonableness of the investigation, I reminded myself that the range of reasonable responses test applies. The Respondent is a large employer with a dedicated HR department and significant resources. It is troubling that the statement of Tony Jeffryes, relied upon by the fact finding and dismissing managers, was not shared with the Claimant. It was not before the Tribunal. This was evidence that the dismissing manager had considered in his decision-making.[71]It is also troubling that CCTV evidence, which the Claimant and his representative repeatedly asked to view and which I find had been reviewed by the fact finding manager, was not shared with the Claimant to ask for his views. This is particularly the case where, although the alleged kiss cannot be seen, the evidence might have raised doubts about what other witnesses could have seen and provided further clarity about the precise sequence of events given the Claimant’s adamance that he had not ‘got hold’ of the complainant.[72]It cannot, however, be said that no reasonable employer in the Respondent’s position would have disregarded the Claimant’s request for CCTV evidence in circumstances where the dismissing manager had not viewed it. Mr Koheeallee’s view was clear that he had two contemporaneous witness accounts of what happened on the picket line, the complainant’s statement, and the note from Toni Jeffryes. While it might have been prudent to provide the clip to the Claimant or certainly show it to him at his request, it cannot be said that the Respondent’s behaviour in not sharing this was outside the range of reasonable responses.[73]I take a different view however on the failure by the Respondent to follow up with the complainant in respect of the Claimant’s account. The Claimant’s apology to the complainant was also never relayed to her. His version of events was never suggested to her. The Claimant had not understood why he was asked to leave the picket line. He was sincere in the fact finding meeting that he would apologise if offence had been caused. He was insistent that he did not kiss her or hold hands with her. Again, I remind myself of the range of reasonable responses test. This was a Claimant with 34 years’ service with the Respondent and an unblemished record. One witness could not be sure about precisely what he saw. Sean Barber’s account of the incident was that he did not think anything of it at the time. Given the Claimant’s insistence that the incident was no more than a misconstrued greeting, that there had been no actual kiss, and given that the highest sanction of summary dismissal was under consideration, I conclude that no reasonable employer would have failed to put the Claimant’s account to the complainant to seek her response. The investigation was not a reasonable one.[74]Turning to other matters of procedural fairness, there appears to have been no review of the Claimant’s suspension until one month afterwards. This is in clear breach of the Respondent’s own conduct policy. However, I find that the Claimant was aware of the allegations against him, that he was given an opportunity to present his version of events at a disciplinary hearing accompanied by a trade union representative, and that he was offered the right to appeal. His dismissal was ultimately reviewed by Lord Falconer as part of his review. This was done at the Claimant’s choice having opted for a review rather than an internal appeal.[75]I have considered carefully whether dismissal as a sanction was within the range of reasonable responses. I remind myself that the Tribunal must not fall into the trap of substituting its own views of what it would have done. On balance, I find that dismissal as a sanction was within the band of reasonable responses. The Respondent’s conduct policy classified abusive behaviour towards a colleague as gross misconduct. The Claimant also accepted that his behaviour could, if shown, be in breach of the Respondent’s business standards.[76]The Respondent did not, however, assess the Claimant’s mitigation, particularly his considerable length of service and unblemished disciplinary record, satisfactorily. It disregarded the Claimant’s explanation as to mitigation both during its investigation and in its decision-making. It failed to relay the Claimant’s apology to the complainant and concluded that he had shown no remorse, when in fact he had sincerely offered to apologise.[77]I conclude that the dismissal of the Claimant was unfair. Contributory fault[78]The Claimant seeks reinstatement. The question of remedy will be determined at a separate hearing. I was addressed by the parties at the conclusion of the hearing on the question of contributory fault. The question of whether the Claimant caused or contributed to some extent to his dismissal is a matter that the Tribunal shall take into account under section 116(1) Employment Rights Act 1996 when considering whether to order reinstatement. It is also relevant to the question of compensation.[79]I find that the Claimant contributed significantly to his dismissal through his behaviour. The dismissal arose out of the Claimant’s conduct. On the Claimant’s own account, he greeted the complainant with ‘hello darling’ and an air kiss. This made the complainant sufficiently uncomfortable to cry. He accepted that, if proven, this conduct would be in breach of the Respondent’s business standards and the requirement to treat colleagues with dignity, courtesy, and respect. This behaviour, in my view, was culpable. This is not a case where the reason for the dismissal is unclear. It was this incident on 01 October 2022 that was the reason why the Claimant was dismissed.[80]I accept that the Claimant was contrite. He offered to apologise. This offer was sincere. He was open that saying ‘hello darling’ may not be an appropriate workplace greeting. He maintained his view that the air kiss was a misunderstood greeting and wanted to apologise to the complainant for any offence caused.[81]While the Claimant’s behaviour was wholly to blame for his dismissal, I have given weight to his contrition which he demonstrated from the outset of this case, particularly during the fact finding investigation. I have therefore concluded that it would be just and equitable to reduce the size of both the basic and compensatory awards by 50% to reflect the Claimant’s contributory conduct.