Mr. EL CrawfordClaimantOpenreach Plc. Hearing: Final Merits HearingRespondent
Before
Employment Judge TinnionDate 15 May 2023
JUDGMENT
[1]The Claimant’s claim of unfair dismissal under ss.94-98 of the Employment Rights Act 1996 is not well founded and is dismissed.
REASONS
Claim
[1]By an ET1 presented on 27 April 2022 [2-14], Claimant Mr EL Crawford brought a claim of unfair dismissal under ss.94-98 of the Employment Rights Act 1996 against his former employer, Respondent Openreach Ltd.[2]By its ET3 [27-32] and Grounds of Resistance [35-38], the Respondent denied the claim. In brief, it contended the Claimant had been fairly dismissed for gross misconduct after a reasonable investigation and a fair disciplinary process. 1 of 17 List of Issues[3]In a Case Management Order dated 20 October 2022 [51, para. 1], a prior Tribunal identified the following liability issues for determination:[4]Issue #1, what was the reason/principal reason for dismissal (and was that a potentially fair reason).[5]Issue #2, did the Respondent act reasonably in all the circumstances in treating that reason as a sufficient reason to dismiss the Claimant, in particular:a. did the Respondent have reasonable grounds for that belief (Issue #2A);b. at the time the belief was formed, had the Respondent carried out a reasonable investigation (Issue #2B);c. did the Respondent act in a procedurally fair/unfair manner (Issue #2C);d. did the Claimant’s dismissal (for the conduct at issue) fall within the range of reasonable responses open to the Respondent at the time (Issue #2D).[6]The parties agreed the Respondent terminated the Claimant’s employment on 20 December 2021, and at the commencement of the hearing the Claimant’s representative confirmed his client accepted the reason for dismissal had been the Respondent’s genuine belief that the Claimant had been guilty of gross misconduct. Trial[7]The final merits hearing was held on 22-24 March 2023. A trial bundle of approximately 350 pages was relied upon (references in square brackets are to the pages of that bundle). Both parties were represented. The parties called 5 witnesses: the Claimant; the Claimant’s son Mr. D Crawford; the Claimant’s union representative Mr. S Donald; Mr. D Ismail (Claimant’s line manager, investigation officer); and Mr. M Baker (dismissal officer). All witnesses giving live evidence sought to assist the Tribunal by giving their honest, best recollection of events, although it was clear Mr. D. Crawford (who also works for the Respondent) believed his father had been seriously mistreated, and that perception heavily coloured his evidence. The Claimant also relied upon statements by former colleagues attesting to his good character and professional conduct. EJ Tinnion disclosed previous legal work he had done for the Respondent, and after taking instructions the Claimant’s representative confirmed he had no objection to EJ Tinnion hearing the claim. 2 of 17
Findings of fact
[8]The Tribunal’s findings below were reached on the civil balance of probabilities.[9]The Respondent is a well-known subsidiary of BT plc which operates and maintains copper wire and fibre cables linking a large number of UK business and residential customers to BT’s customer network to provide telephone and broadband services.[10]In 1989, the Claimant commenced employment with one of the Respondent’s predecessors (Openreach Ltd. itself was incorporated on 24 March 2017). By 2021, the Respondent employed the Claimant as a Field Engineer. The Claimant usually worked alone, but could request/obtain assistance if needed. His day-today tasks and duties included (amongst others) driving his work van to residential or public locations where there was a manhole, checking the manhole and space underneath it was safe to work in - a very important part of which involves the use of a gas detection unit (GDU) to check for gas - entering the manhole to do work underground (provided it is safe to do so), finishing the job, closing the manhole, and leaving for the next assignment (flagged on an app on his phone). The Claimant was trained on the use of the GDU, and prior to the events referred to below had attended a safety module called ‘Safety Gas Testing in the Underground Structure’.[11]Possession and appropriate use of a GDU on field jobs was (and is) a critical health and safety requirement of a Field Engineer’s post. Failure to use a GDU when its use is required could result in gas not being detected – in a very worst case scenario, undetected flammable gas might catch fire, cause an explosion, and kill/injure the Field Engineer, nearby members of the public, as well as damage nearby property. The Tribunal accepts – as the Claimant did - that the Respondent was reasonably entitled to treat failure to use GDU on a job requiring its use as a matter of the utmost seriousness.[12]The index events which resulted in the Claimant’s dismissal occurred on 14-15 July 2021. Up until then, the Claimant had a clean disciplinary record, as well as a 30+ year record of good service with the Respondent. Nothing in this judgment calls into question those facts.[13]On 14 July 2021, the Claimant was working in Widnes on Job #LV-BWV18416. He lost his GDU (which was registered to him). A member of the public found it in Widnes, and handed it in. 3 of 17[14]On the morning of 15 July 2021, the Claimant was at work in St Helens working on Job #LV4CYM16. That morning, he called his Patch Lead M Wallace and told him his GDU had been stolen from him that day – he stated he left it on a manhole cover, and when he returned it had gone. After that call, the Claimant exchanged the following text messages with an employee of the Respondent [211]: Claimant: Spoke to Mike, my GDU has just been stollen had a box guard off went back guards had been kicked over and GDU gone Employee: Speak to James please he has a spare that should have been collected. Did you leave site with an open guarded off area? Claimant: Walk-in the node looking for another box, I left it safe with guards. Employee: Ok Les James has a spare it’s the only one we have left on the team so guard it with your life. Claimant: Haha gonna sleep with it under my pillow (emoji)[15]There is no dispute about the fact the Claimant’s GDU had not been stolen from him on 15 July, and what the Claimant had said about its loss on 15 July was incorrect.[16]Meanwhile, Mr. Ismail requested a report on the GDU handed in on 14 July to find out who it belonged to. The report identified the GDU as the Claimant’s. When Mr. Ismail read the report, which identified its most recent use, he could see that it had not been used on 15 July contrary to the Claimant’s suggestion he had it, and had used it (or at least had it ready for use), that day. The report stated the last time the Claimant’s GDU had been used was 14 July. Investigation[17]Mr. Ismail invited the Claimant to a meeting held on 28 July 2021. At the meeting, the Claimant confirmed that on 15 July he had been working on job LV4CYM16 at Beechwood Close, St. Helens, and it was while working on this job that his GDU was stolen. Mr. Ismail asked when the Claimant realised his GDU had been stolen, and the Claimant replied (in terms) ‘kids going to school – guarded the area off and the 4 of 17 JF4 was closed, so there was no danger to kids falling into the hole in regards to safety, but my GDU was still there and the guards were still up.’[18]After the Claimant gave this account, Mr. Ismail asked how he could have used his GDU on 15 July when a GDU with his registration had been found by a member of the public on 14 July in Widnes. In response, the Claimant immediately accepted the GDU handed in on 14 July had been his, and explained that he had assumed that his GDU had been there on 15 July.[19]Given the discrepancy, Mr. Ismail told the Claimant he intended to retrieve the data from his GDU to ensure the Claimant had been using it when working underground. In the Tribunal’s view, Mr. Ismail’s decision to investigate the Claimant’s use of his GDU on tasks was reasonable and called for, given the Claimant’s incorrect (at best) false (at worst) suggestion that he had it and lost it on 15 July (in a situation requiring its use) when he lost it on 14 July and neither used it nor had it for use on 15 July.[20]By letter dated 2 August 2021, the Claimant was notified he was suspended on full pay pending an investigation into an allegation of misconduct, specifically, that he had failed to carry put a gas detection test while working in the underground structured network (at this point in time, the allegation concerned the Claimant’s use of a GDU on 15 July 2021).[21]On 2 September 2021, an investigatory meeting was held, chaired by Mr. Ismail, accompanied by D Grace (notetaker). The Claimant attended, and was represented by Mr. S. Donald, CWU union representative. Mr. Ismail asked the Claimant about his use (more accurately, alleged non-use) of his GDU on 9 jobs over a 2 month period, which Mr. Ismail identified based on a comparison of the Respondent’s records showing the timing (date, beginning and end times) of the Claimant’s work on a job compared to the Respondent’s records of the timing (date, times of day) when the Claimant’s GDU had been activated (based on the data on the Claimant’s GDU).[22]It will assist to note here that ultimately only 4 of these 9 incidents were found proven and material to the Respondent’s decision to dismiss the Claimant for gross misconduct and to subsequently dismiss his appeal against dismissal, hence it is those 4 incidents which are critical to the fairness of the dismissal (the Claimant was found to have no case to answer in respect of 2 incidents, and was found ‘not guilty’ in respect of the other 3 incidents after either the disciplinary or appeal hearing). The 9 incidents, and their status following the outcome of the investigation, disciplinary 5 of 17 hearing and appeal hearing, are summarised in the table on Appendix A (the numbering of the 9 incidents is the Tribunal’s, not contemporaneous).[23]A note of the 2 September 2021 investigation meeting was prepared [245-250] which is, to a company outsider, somewhat cryptic and hard to follow. But as noted in the Appendix, the explanations the Claimant gave concerning 2 jobs - LC4CQR53 (26 May 2021) and LV4CQR53 (3 June 2021) – were accepted, and formed no part of the case against him at the disciplinary hearing.[24]At the investigatory meeting (or shortly after), the Claimant gave the following explanations in respect of the incidents for which he was ultimately dismissed:a. No. #4 (LV4CWC38, 30 June 2021) – Claimant attended job with R Lee, couldn’t remember if R Lee used his own GDU, Claimant definitely had his GDU on, accepted GDU times didn’t tally with job execution/completion times;b. No. #5 (LV4CWF02, 30 June 2021) – Claimant attended, found Box 23 completely submerged in mud/water, Claimant had to dig it out by hand;c. No. #7 (LV4CWX99, 6 July 2021) - a contractor/engineer on loan was working in the joint, the Claimant never went into the joint, so did not have to use his own GDU on this job;d. No. #8 (LV4CXN39, 8 July 2021) – Claimant denied not using his GDU on job, alleged he used his GDU on job because it was a clippy joint, acknowledged times did not match up.[25]Mr. Ismail’s subsequent investigation (involving site visits, not just office-based work), suggested to him the following:a. No. #4 (LV4CWC38, 30 June 2021) – Claimant’s name on A1024 label [259, left photo] found on outside of clip joint [258, right photo] badged to task with correct date [294-295];b. No. #5 (LV4CWF02, 30 June 2021) – on site visit, end-user confirmed lid on Box 23 does get puddle around it at times, but still an underground closure, gas test must always be running while entering any underground structure, Claimant’s GDU data shows GDU used for only 3 minutes, a lot less than length of time it should have been on given Claimant had to dig box out by hand [295];c. No. #7 (LV4CWX99, 6 July 2021) – the Claimant had labelled an A1024 [276] that was in the joint, there was no label/date in the joint from a 6 of 17 contractor/engineer on loan (inference drawn: the Claimant had been working by himself) [293];d. No. #8 (LV4CXN39, 8 July 2021) – the Claimant had labelled this joint [265] and accessed it, appears to be no GDU test (inference drawn: Claimant had not completed a GDU test) [294].[26]Mr. Ismail prepared a ‘Misconduct Investigation Report [278-297] which after summarising his findings concluded the Claimant had a case to answer for gross misconduct in respect of (amongst others) the 4 incidents identified above. Disciplinary hearing[27]By letter dated 20 October 2021 [298-300], Mr. M Baker (Senior Area Manager Lancashire and Merseyside) requested the Claimant to attend a disciplinary hearing on 4 November 2021 relating to the following allegation of misconduct: “Failing to comply with the correct Safety Policy and Working Practices in that between 10th May 2021 and 15th July 2021 on numerous occasions you failed to use your GDU whilst working in the [underground] network.” [298][28]The letter informed the Claimant of his right to be accompanied, listed and enclosed the documentation the Respondent intended to rely upon, and invited the Claimant to send Mr. Baker any documentation he wanted him to consider. The letter warned this would be a formal disciplinary meeting and that if there was evidence to support any of the allegations this could amount to gross misconduct which might result in dismissal. A copy of the Respondent’s disciplinary policy and procedure was enclosed. The Claimant was informed of his ability to contact the Respondent’s Employee Assistance Programme for support. The disciplinary hearing had to be rearranged, and an invitation letter dated 15 November 2021 with the same content was sent to the Claimant [301-304].[29]On 30 November 2021, the Claimant’s disciplinary hearing was held via video. Mr. Baker chaired the meeting and had responsibility for determining whether the Claimant was guilty of misconduct and if so the sanction. The Claimant attended, and was accompanied by union representative Mr. S Donald. No contemporaneous note of the disciplinary hearing was put before the Tribunal. Instead, the outcome letter dated 13 December 2021 [305-308] attached Mr. Baker’s written rationale for 7 of 17 his decision to dismiss the Claimant [309-314], part of which included a note of the disciplinary hearing [309-313] which intermingled what was said at the hearing with events which occurred after. For example, the second last paragraph on [312] outlines a discussion Mr. Baker had with the Claimant about a job on 14 April 2021, but the last sentence of that paragraph states what investigation Mr. Baker conducted after the hearing about that job and the conclusion reached in respect of it. Suffice to say, this intermingling of events is not an ideal way of memorialising what takes place at a meeting.[30]With that said, the note accurately records the fact Mr. Baker, the Claimant and Mr. Donald discussed the key incidents - Jobs Nos. #4 [312]. #5 [312] #7 [311] and #8 [313] – as well as Job Nos. #9 [310] #1 [312]. There was no discussion of Job Nos. #2 and #3, consistent with Mr. Ismail’s acceptance at the investigatory stage that the Claimant had provided a satisfactory answer relating to his use of his GDU on those occasions. The Claimant brought up the fact his GDU was not recording the correct time [312] (it was out by an hour because the Claimant had not changed the GDU clock time when clocks went forward in March), and Mr. Baker confirmed this had been taken into consideration for the whole investigation when times were lined up [312].[31]In support of his case that the Claimant’s GDU clock times might not be reliable, the Claimant referred to a job he had done outside a butchers shop on 14 April 2021 and photos taken at the time, which he suggested showed his GDU hanging on the joint box being used but the GDU activation record not reflecting that fact. At the hearing, Mr. Baker asked the Claimant whether the photos showed the GDU was switched on, and the Claimant replied they did. After the disciplinary hearing, however, Mr. Baker looked at the photos [349-350] and concluded – reasonably, in the Tribunal’s view – that they did not show the GDU switched on (ie, they were not sufficiently clear to show the GDU on, not that the photos showed the GDU was not on). Mr. Baker concluded – reasonably in the Tribunal’s view –the photos were insufficient evidence to prove the Claimant’s GDU was not working or not recording data correctly [312].[32]By letter dated 13 December 2021 [305-306] attaching his rationale [309-314], Mr. Baker dismissed the Claimant for gross misconduct. He found the misconduct allegations regarding Job Nos. #4 #5 #7 #8 and #9 proven. Mr. Baker cleared the Claimant of misconduct in relation to Job No. #1 [312, 2nd para.]. Although his letter 8 of 17 and rationale omitted to state it, Mr. Baker also cleared the Claimant of misconduct in relation to Job No. #6. Although not stated in crystal-clear terms, Mr. Baker concluded the Claimant’s misconduct regarding Job Nos. #4 #5 #7 #8 and #9 constituted gross misconduct because it showed serious breaches of the Respondent’s safety policy and working practices. Mr. Baker’s letter stated the Claimant’s last day of employment would be 20 December 2021 (so the Claimant was given some notice of dismissal, hence was not summarily dismissed) [305], and informed the Claimant of his right of appeal and how to exercise it [305-306]. Appeal[33]By email on 21 December 2021 [325], union representative Mr. Donald lodged an appeal on the basis that the decision to dismiss the Claimant was unfair (no particulars were provided at this stage). Subsequently particulars were provided [326-327], which raised a large number of procedural points. The Claimant obtained statements from colleague D Webb addressing Job No #9 (15 July 2021), confirming he had worked with the Claimant on this job and used his own GDU to complete the job [329] (this explanation was accepted on appeal), and a statement from Mr. S Glasson concerning 12 May 2021.[34]The Respondent appointed Mr. P. McGinlay (Director, North of England Service Delivery) to hear the Claimant’s appeal, which was held in person on 25 January 2022 at Bootle Telephone Exchange. Mr. McGinlay attended. The Claimant attended, accompanied by his son D Crawford. Again, a proper note of the appeal hearing was not put before the Tribunal – what happened and was said at the appeal hearing has to be discerned from Mr. McGinlay’s rationale document [333-344] explaining why the Claimant’s appeal against dismissal was unsuccessful.[35]Many of the procedural points the Claimant raised were discussed at the outset of the appeal hearing [334-336].[36]In relation to Job No. #9 (15 July 2021), based on Mr. Webb’s statement and tracking data for Mr. Webb (which was not available for the Claimant for technical reasons), Mr. McGinlay accepted the Claimant had sought support to ensure he was working safely by securing an assist from a colleague and using their equipment to ensure their tasks were completed safely [336]. 9 of 17[37]In relation to Job No. #1 (11 May 2021), Mr. McGinlay found there had been an error on the date (it was two jobs covering 11-12 May 2021), and concluded the Claimant had not been guilty of misconduct in relation to either date [337-338].[38]In relation to Job No. #6 (6 July 2021), which Mr. Baker had not addressed in his outcome letter, Mr. McGinlay found the relevant job was completed on 5 July, not 6 July, and the Claimant had been working in a capping joint which did not require underground work, and concluded the Claimant had not been working unsafely [338].[39]Mr. McGinlay agreed Mr. Ismail had been right to conclude at the investigation stage that the Claimant had no case to answer in respect of Job No. #2 (26 May 2021).[40]Mr. McGinlay discussed the Claimant’s point that his GDU clock data was an hour behind during daylight savings time and was providing inaccurate data/times, relying on the data for 15 June 2021 (which was not one of the dates of the 9 incidents in issue). McGinlay considered this point, reviewed the data himself, and was satisfied the Claimant’s GDU data aligned with the onsite data and showed the Claimant’s GDU had been used in this instance [339].[41]The Claimant sought to argue his GDU data could not be relied upon because there were occasions when the ‘turn off’ time recorded was before (not after) the ‘turn on’ time (1 April – turned on 14:44, turned off 09:04; 13 April – turned on 13:38, turned off 10:46). Mr. McGinlay considered this point - which had already been considered and rejected by Mr. Baker following technical advice/analysis from the Respondent’s internal EYP tester that this happens when a GDU is left on overnight – and rejected it on essentially the same grounds [339].[42]At the appeal hearing, the Claimant sought to rely upon photos showing his GDU in use outside the butchers shop on 14 April 2021 [350]. Mr. McGinlay found the photos inconclusive [340] (reasonably, in the Tribunal’s view).[43]In relation to Job No. #7 (6 July 2021), Mr. McGinlay considered and rejected the Claimant’s case that the incident occurred on 5 July not 6 July, and rejected the Claimant’s new case on appeal that he had been accompanied on the job not by an out of patch contractor or engineer but by an FVR (internal) engineer. Mr. McGinlay noted the Claimant’s inability to identify any FVR engineer, who he believed the Claimant likely would have recognised had this happened [341].[44]In relation to Job No. #4 (30 June 2021), the Claimant relied upon a statement from R Lea who stated he had assisted the Claimant on this job, and on arrival found the 10 of 17 Claimant set up safely with his guards up with his GDU on [341]. Mr. McGinlay considered this point, and noted Mr. Lea’s own GDU was not activated that day, suggesting they were both in breach of safety practices [341-342].[45]Mr. McGinlay’s decision was to dismiss the Claimant’s appeal, which he did by an appeal outcome letter dated 7 March 2022 [332] attaching his appeal outcome rationale [333-343]. The key part of the rationale is the table on [342], which highlighted the 4 incidents in respect of which the Claimant was found to have breached health and safety requirements by not using his GDU correctly (Job Nos. #4 #5 #7 and #8), set out the job execution (start) time and completion (end) time of each job, set out the GDU on and off times available on those dates (if any), with a summary note explaining his findings. Mr. McGinlay concluded he could not accept any justification for those serious breaches of safety process, found the charge of gross misconduct proved, and stated he found nothing new that led him to cast doubt on the appropriateness of Mr. Baker’s original decision or to overturn that decision and substitute a lesser disciplinary sanction [342-343].[46]The Tribunal heard no witness evidence from Mr. McGinlay, but notwithstanding that was satisfied that his appeal outcome letter and attached rationale genuinely stated his reasons for dismissing the Claimant’s appeal against dismissal. Unfair dismissal - relevant law[47]Section 98(4) of the Employment Rights Act 1996 provides (in relevant part):(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it … (b) relates to the conduct of the employee ... 11 of 17 (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[48]The fairness of a dismissal must be judged based on the facts and circumstances before the employer at the time of dismissal. A dismissal will be unfair if, and only, considered as a whole the dismissal fell outside the band of reasonable responses open to the employer at the time – the Tribunal must not focus solely on the substantive or procedural fairness of the dismissal. The issue of whether the Tribunal itself would have dismissed the employee for the conduct at issue is irrelevant.[49]When considering whether a dismissal for misconduct was fair, the Tribunal should consider(a) whether the employer genuinely believed the employee was guilty of the misconduct(b) whether the employer had in its mind reasonable grounds for that belief at the time(c) whether at the time the employer had formed its belief in the employee’s guilt, it had carried out as much investigation into the matter as was reasonable in all the circumstances. British Home Stores v Birchell [1980] ICR 303.[50]The test “all the way through” is reasonableness - the employer is not required to be “sure”, nor is there any requirement that the employee’s culpability be proven “beyond reasonable doubt”. The range of reasonable responses test applies to the question of whether the investigation into the misconduct was reasonable. Sainsbury’s Supermarkets Ltd. v Hitt [2002] EWCA 1588, para. 31.[51]In determining whether dismissal for misconduct was fair, the Tribunal is entitled to take into account the employer and employee’s compliance (or non-compliance) with the ACAS Code of Practice on Discipline and Grievance Procedures (ACAS Code). 12 of 17 Discussion / Conclusions Issue #1: Reason for dismissal[52]The Tribunal is satisfied the Respondent’s reason – in this case, Mr. Baker and Mr. McGinlay’s reasons - for dismissing the Claimant and subsequently dismissing his appeal was because of their genuine and sincere belief at the time that the Claimant had not used his GDU (a critical piece of safety equipment) either at all or properly when he had been working on Job Nos. #4 #5 #7 and #8. This was a conduct-based dismissal, constituting a potentially fair reason for dismissal. Issue #2A: Reasonable grounds for belief[53]The Tribunal is satisfied that when they formed that belief, Mr. Baker and Mr. McGinlay had reasonable grounds for holding it, based on a comparison of the Claimant’s execution/completion times for those jobs compared to the data extracted from the Claimant’s GDU showing whether, and if so when, his GDU had been activated on those days.[54]The Tribunal is not satisfied it was unreasonable for the Respondent to reach that conclusion because of the following challenges to it:[55]First, the Claimant’s GDU clock time was an hour out. The Respondent adjusted the Claimant’s GDU clock times for this error, and even with that adjustment there still remained a material discrepancy between the two sets of data.[56]Second, the Claimant’s GDU data suggested that on certain dates the Claimant’s GDU was turned off before it was turned on, suggesting it was not (or at least might not have been) working properly – see, eg, data for 13 April 2021: GDU on time 13:38, GDU off time 10:46 [221]. The Respondent’s in-house personnel had considered this possibility, and determined those incidents were likely caused by the Claimant’s GDU having been activated on one day then switched off (or the battery expiring) the following day – although the Claimant was clearly sceptical about this explanation, evidential support for it was provided by the photos which showed the Claimant’s apparent use of his GDU on 14 April 2021 at 10:27 [349-350]. The Tribunal is not satisfied the Respondent’s decision-making process in respect of this challenge was flawed or unreasonable. 13 of 17[57]Third, the Claimant’s job execution/completion times might not be accurate, because the Claimant sometimes entered this data a while after the job had been completed, not contemporaneously. There was no evidence before the Respondent that the Claimant had entered his job execution/completion times on the 4 Job Nos. in question on a non-contemporaneous basis, and even if he had, the Claimant would still have been obliged to enter his best estimate of when he started and/or completed the job. It was reasonable for the Respondent to rely on this data. Issue #2B: Reasonable investigation[58]The Tribunal is satisfied the Respondent’s investigation was reasonable, and within the band of reasonable investigatory responses open to the Respondent at the time.[59]First, the Respondent appointed Mr. Ismail, who had himself been a Field Engineer earlier in his career, hence was familiar with field working practices.[60]Second, Mr. Ismail conducted two fact-finding meetings with the Claimant. The Tribunal accepts at the first fact-finding meeting that Mr. Ismail probably did not tell the Claimant it was a fact-finding meeting, but Mr. Ismail had good reason not to – to obtain the Claimant’s unvarnished evidence on whether he had his GDI with him on 15 July 2021 , and when the Claimant confirmed (in terms) that he had it with him that day, to require the Claimant to explain how he accounted for the fact his GDU had been handed in on 14 July 2021, hence could not have had it on 15 July.[61]Third, Mr. Ismail’s investigation and conclusions were data-driven.[62]Fourth, on technical matters Mr. Ismail obtained advice and input from the Respondent’s in-house personnel, who tested the Claimant’s GDU, and confirmed it was not unsafe – no faults, alarms or defects were noted on it. The Tribunal does not accept the Claimant’s suggestion that his GDU should have been subject to external testing (the Claimant did not suggest the in-house testing was not done in good faith by people equipped and trained to test it properly).[63]Fifth, when the Claimant provided Mr. Ismail with a reasonable explanation for the non-use of his GDU on certain jobs (Nos. #2 #3), those explanations were accepted at the investigatory stage, and the Claimant was not required to answer them at the disciplinary hearing.[64]Sixth, after he heard the Claimant’s explanations, Mr. Ismail conducted site visits, so his investigation was not purely office-based. 14 of 17[65]Seventh, Mr. Ismail’s investigation and conclusions were reasonably summarised in his Misconduct Investigation Report [278-297], a copy of which was given to the Claimant prior to his disciplinary hearing, from which the Claimant could reasonably understand the basis upon which it would be alleged at his disciplinary hearing that he had not used his GDU appropriately.[66]Eighth, Mr. Ismail’s conclusion that the Claimant had a case to answer at a disciplinary hearing was reasonable, based on the evidence before him.[67]The Tribunal rejects the Claimant’s case that no investigation ought to have been made into the Claimant’s alleged inappropriate use of his GDU. In light of the Claimant’s clear suggestion to Mr. Ismail on 28 July 2021 that he had his GDU with him on 15 July 2021 and was using it that day (or had it ready for use), when that could not possibly have been the case as the Claimant had mislaid it on 14 July, Mr. Ismail was entitled to query whether there might have been any other occasions on which the Claimant ought to have been using his GDU but had not, and reasonably commission an inquiry into that issue. It would be unusual to conclude that an investigation was unreasonable because it investigated too many matters.[68]The Tribunal also rejects the Claimant’s suggestion that a reasonable investigation into the Claimant’s use of his GDU on 14 April 2021 required an interview of the butcher to ask if he heard the GDU beeping. Issue #2C: Reasonable/fair disciplinary process[69]Having regard to the ACAS Code, the Tribunal is satisfied the Respondent conducted a reasonably fair disciplinary process.[70]First, as noted, Mr. Ismail conducted a reasonable investigation to establish the facts of the case, and held two investigatory meetings with the Claimant, at the second of which the Claimant had union representation.[71]Second, the Claimant was given a copy of the Respondent’s disciplinary policy.[72]Third, different people carried out the investigation (Mr. Ismail), the disciplinary hearing/decision (Mr. Baker), and the appeal hearing/decision (Mr. McGinlay).[73]Fourth, the Claimant was notified of his suspension and the reasons for it in writing, and was informed his suspension did not mean he was guilty of misconduct.[74]Fifth, the Claimant was notified in writing of the decision that there was a disciplinary case to answer. The investigation report, a copy of which was provided to the 15 of 17 Claimant, and the letters inviting the Claimant to his disciplinary hearing contained sufficient information to put him on notice of the allegations and to prepare his case in response at the disciplinary hearing, which he exercised.[75]Sixth, the letters inviting the Claimant to the disciplinary hearing told him where and when it would be held, informed him of his right to be accompanied, and warned of the potential outcomes, including dismissal.[76]Seventh, the Respondent held a disciplinary hearing, which the Claimant attended accompanied by his union representative, at which the allegations were gone through, and the Claimant and his representative given the opportunity (which they exercised) to state the Claimant’s case in response.[77]Eighth, the Tribunal is satisfied the Claimant’s disciplinary hearing was fairly conducted. Mr. Baker accepted the Claimant was not guilty of misconduct in relation to Job Nos. #1 #6 and #9 based on the evidence and explanations presented, from which the Tribunal infers that if satisfactory evidence or explanations had been provided to him in relation to Job Nos. #4 #5 #7 and #8 that he would have cleared the Claimant of the allegations of misconduct in relation to those matters as well.[78]Ninth, after the disciplinary hearing, Mr. Baker decided whether disciplinary action was justified (there was no evidence the outcome was pre-determined), and informed the Claimant in writing of his decision, providing reasons for it.[79]Tenth, the Claimant was informed in writing of his right to appeal and how to do so, and exercised that right.[80]Eleventh, although no direct evidence was heard from Mr. McGinlay, the Tribunal is satisfied the appeal hearing which he chaired was conducted fairly, with the Claimant given the opportunity (which he exercised) to set out and elaborate on his grounds of appeal. The Claimant was accompanied by a work colleague, his son.[81]Twelfth, after the appeal hearing, Mr. McGinlay informed the Claimant of the outcome and the reasons for it in writing. After considering new evidence the Claimant had presented at the appeal hearing, Mr. McGinlay overturned Mr. Baker’s finding in relation to Job No. #9 and found the Claimant not culpable in respect of that allegation. 16 of 17 Issue #2D: Whether dismissal for conduct within range of reasonable responses[82]Having found the Claimant guilty of misconduct by failing to use his GDU either at all or properly in relation to Job Nos. #4 #5 #7 and #8, the Tribunal is satisfied that the Claimant’s dismissal for that conduct fell within the range of reasonable responses open to the Respondent at the time, notwithstanding the Claimant’s clean disciplinary record and long record of good service.[83]First, it was not in dispute that a GDU is an essential piece of safety equipment which must be used (and used appropriately) when its use is required on a field job.[84]Second, the potential consequences if a GDU is not used properly when its use is required are extremely serious – in a worst case scenario, the possible injury, even death, of a field engineer and any members of the public nearby if flammable gas is not detected and ignites.[85]Third, the Claimant knew this at the time, and did not dispute it – the only issue at the Claimant’s disciplinary hearing was whether reliable evidence showed that the Claimant had failed to use his GDU appropriately in respect of 7 particular jobs.[86]Fourth, given the serious health and safety issues implicated, it was reasonable for the Respondent to conclude the Claimant’s misconduct was sufficiently serious so as to constitute gross misconduct.
Conclusion
[87]Looked at in the round, the Tribunal is satisfied the Respondent has shown that the Claimant’s dismissal for the misconduct at issue – the Claimant’s failure to use his GDU on 4 separate occasions either at all or appropriately – fell within the range of reasonable responses open to it at the time.[88]It follows that the Claimant’s claim of unfair dismissal under ss.94-98 of the Employment Rights Act 1996 is not well founded and must be dismissed.