Employment Judge G HodgsonIn person for claimantDate 23 December 2022
JUDGMENT
The claim of unfair dismissal is well founded and succeeds.
REASONS
1.1 By a claim form presented to the London Central employment tribunal on 8 September 2009, the claimant alleged he had been unfairly dismissed by the respondent. The Issues2.1 The only claim is unfair dismissal.2.2 The respondent alleges that it had a potentially fair reason for dismissal which related to conduct. The respondent alleges the claimant was dismissed because it was believed he had, during a private party, sexually harassed a woman who was an employee of the British embassy. The - 1 - individual who made the complaint was anonymised by EJ Nicolle at a hearing on 5 February 2020. In this judgment I refer to the complainant as ZZ.2.3 It is the claimant's case that the dismissal was unfair. In particular, he alleges that there were serious flaws in the way the respondent approached the investigation, the decision to dismiss, and the appeal. Throughout the process he denied the alleged sexual harassment. Evidence3.1 The claimant gave oral evidence, and I received a statement from him.3.2 The respondent called Mr Sanjay Patel, who was at the time the global HR director employee relations and reward; he was not a decision-maker, but stated he had a supporting role throughout the process. The respondent also called Ms Kate Ewart-Biggs, who was the deputy chief executive; she dismissed the claimant.3.3 I do not have any statement or oral evidence from the following: the person primarily responsible for the initial investigation; the person primarily responsible for investigating at appeal stage; or the person who considered the appeal hearing.3.4 I received a bundle of documents.3.5 The respondent filed a chronology and cast list.3.6 Both parties filed written submissions and supplemented them with oral submissions. Concessions/Applications4.1 The claimant renewed his application for anonymity.4.2 The respondent renewed its application to maintain ZZ's anonymity. The Facts5.1 In this section I will deal with the main events. To avoid unnecessary repetition, I will deal with further facts in my discussion section, as necessary, when considering my conclusions.5.2 The respondent is the UK's international organisation for cultural relations and educational opportunities. It is an executive non-departmental public body and is a charity incorporated by Royal Charter. It operates in over one hundred countries. It is not part of any embassy, but liaises closely with the British embassy. The British embassy was, at the time, part of - 2 - the Foreign and Commonwealth Office (FCO)1 and is the sponsoring government department of the British Council.5.3 The claimant was employed by the British Council from 1 September 1990. He was appointed country director for Italy from 1 September 2014 until his dismissal on 7 May 2019. The country director role is the respondent's most senior role in each country in which it operates. The claimant was the respondent’s senior representative in Italy. He was responsible for all aspects of the respondent's operation in the country and for developing and maintaining strong relationships with key stakeholders.5.4 On Sunday, 16 December 2018, the claimant and his wife, in their Rome flat, hosted a social gathering which has been referred to as a "family Christmas brunch." I will refer to it generally as "the party."5.5 ZZ attended that party. She was an employee of the British embassy in Italy. Following the party, she made a complaint to the embassy alleging inappropriate behaviour by the claimant, which she alleged was sexual harassment. Following an investigation and a disciplinary hearing, the claimant was dismissed on 7 May 2019. He subsequently appealed. The appeal was rejected.5.6 It is agreed ZZ was at the party. The claimant accepts that when she left the party, he kissed her on both cheeks, being the common Italian practice. It is less clear whether he gave her a hug. In her initial complaint, ZZ appears to allege that she was kissed on the lips, being side of the mouth,2 and thereafter there was inappropriate touching. Broadly, it is ZZ's position that the claimant placed both of his hands on both of ZZ's breasts and rubbed down in a sexual manner.5.7 On leaving the party, ZZ sent a text to a man, which allegedly concerned the party. The man has not been identified at any stage. At a later date, which has not been ascertained, she deleted the relevant text messages. She later described the content of the alleged text messages in an interview at the appeal stage, and I will come to that in due course.5.8 At approximately 02:00 on 17 December 2018, ZZ sent a WhatsApp message to her friend Gemma Ralph seeking her advice. She did not set out any details. She refers to sending an email to "HMA" who she says was "quite supportive." It is unclear who HMA was. The email has not been obtained or disclosed.5.9 On 17 December 2018, at 14:25, ZZ wrote an email to Ms Jill Morris, the British ambassador to Rome. ZZ described the alleged incident in the following terms: I will continue to refer to it as the FCO.[2]If at any time there was a distinction made between the side of the mouth and the lips, that has never been made clear. - 3 - At about 4:30 pm as the party was winding down I decided to leave and I went to thank Paul. As I went to kiss him goodbye he kissed me twice on the side of my mouth (rather than the cheek) and then he stroked my breasts with both his hands. I was very shocked so I didn’t respond immediately and left the party. There were other people in the room but I do not know if they witnessed it. 5.10 ZZ stated that she wished to flag the issue and sought Ms Morris's views. Ultimately, there was a formal complaint made on ZZ's behalf by Mr O’Flaherty on 14 January 2019. 5.11 It is unclear what happened between 17 December 201814 January 2019. However, it is clear there was some form of ongoing investigation, and at some level it involved interaction between the FCO and the British Council. 5.12 On 3 January 2019, Ms Rebecca Walton, regional director EU, an employee of the British Council, wrote to Mr O’Flaherty stating I am picking up the investigation into the complaint against Paul Sellars (PS). Thank you for relaying this to us. We are taking it seriously, and will put in place our formal processes. I am aware that Sanjay Patel (BC Director Employee Relations, here in headquarters) was in touch with you before Christmas. He confirmed that I will head the investigation. Christmas leave is rather delaying us. We plan to start the formal interviews towards the end of next week. Meanwhile I would find it helpful if you and I could have a short, informal, call this week, or early next, before I start the process. Do you have any time available? Once we begin the formal process, I shall interview the complainant by telephone with a notetaker with me at this end. She will have the right to be accompanied, formally with a union or legal representative if she chooses. In the same manner I shall then interview PS. He can also choose to be accompanied. And if there emerge further material witnesses, I’ll also speak to them. 5.13 It follows that there was some form of process. However, the nature of the process is unclear; it was not communicated to the claimant at any time. In Ms Watson's subsequent report, there is a timeline. The timeline starts at 3 January 2019. There is no account of the progress of ZZ’s complaint between 17 December 2018 and 3 January 2019. It is not clear that all relevant documents from that period were obtained by the British Council. 5.14 The timeline records a case assessment panel (CAP) met on 8 January 2019 and states it was "to agree initial scope of investigation, approach and questions for complainant." There are no minutes of that meeting. It is the respondent's position that there are no minutes of any CAP meetings. - 4 - 5.15 Some emails were generated and have been disclosed. The CAP was chaired by Mr Sanjay Patel, from whom I heard. He states the incident was first reported to the British Council by Mr O’Flaherty (Minister and deputy head of mission at the British Embassy in Rome) he does not state how the allegation was reported, but says he spoke with Mr O’Flaherty later that day and "agreed that the allegation would be handled by the British Council." He then states that he initiated the "internal process for an investigation." He does not describe the nature of this or confirm the procedure. 5.16 The disciplinary procedure provides that in the "case of gross misconduct if the issues are complex and/or sensitive it may be necessary to convene a case assessment panel." There is a procedure for agreeing the panel and its members with HR. The disciplinary procedure does not set out the CAP's purpose. Mr Patel explained it is to ensure an overview and to identify and suggest appropriate lines of enquiry. It should ensure a fair investigation and a fair procedure. Mr Patel says nothing about the process of convening the CAP, or the meeting on 8 January 2019. 5.17 Following agreement between the embassy and the British Council, Mr O’Flaherty, on 14 January 2019, sent a "summary of the complaint." In addition, his email said: Separately from this complaint (but perhaps relevant), Paul Sellers has shown erratic and uncharacteristically emotional behaviour in his interactions with embassy staff in recent months. This has made HMA and I wonder whether there might be other issues in play, and whether it would be worthwhile speaking to British Council colleagues in Italy (e.g. Jane Costello) to build a broader picture of Paul’s interactions. I would be very happy to brief in more detail as useful. 5.18 The alleged incident is described as follows: ZZ reported to HMA and myself that on Sunday 16 December she attended a party at the home of Paul Sellers, Director British Council in Italy. Paul’s wife Isadora worked at the embassy until the end of December, and several other embassy colleagues attended the party. ZZ arrived around 1400 and people were starting to drift off around 1530- 1600. Embassy colleagues present included Helen Marais (and husband), Julia Barbieri (and husband) and anintern called Giulia. Another colleague Chris Brealey also left shortly before ZZ. ZZ decided to leave around 1630 and said goodbye to Isadora. When saying goodbye to Paul, he leaned in and kissed ZZ on the edge of her lips. He placed his hands on her chest and rubbed them down over her breasts in a way that was clearly deliberate. 5.19 It went on to say ZZ judges that Paul was “quite drunk”. He had previously being salsa dancing with a female intern and said proudly that he “didn’t drink coffee” when it was offered. [Comment: Paul regularly drinks at professional/ - 5 - social events. I have not seen him incapacitated, but he does show the effect of alcohol and consumes more of it than many colleagues.] 3 5.20 It follows that the report was a mixture of a report of ZZ's complaint, and a generalised allegation of erratic behaviour, but it unclear where this additional allegation came from or why it was included. 5.21 The email was not shown to the claimant at the disciplinary stage. The summary was kept from the claimant until the appeal stage. 5.22 On 14 January 2019, ZZ was interviewed by Ms Rebecca Walton. ZZ’s companion was Mr O’Flaherty. The notes of the meeting are not verbatim. It was a video conference. It was not recorded. ZZ’s account refers to her first saying goodbye to Ms Isadora Papadrakakis, the claimant's wife. Thereafter she went to say goodbye to the claimant. She said, "He was quite drunk." She referred to his dancing in the living room and seeming merry. She referred to being kissed "on the side of my mouth, near my lips." She is reported as saying "At the same time, he put both hands on my breasts and moved his hands downwards." She stated, "He started rubbing down." She then “picked up” her belongings and left there is no suggestion that she spoke to anyone else. 5.23 Later she is reported as saying "Also, during the course of the goodbye hug, if you can call it that, I do not think other people saw the incident, but they were in the room. His wife was behind me." Later she was asked if there was "anyone you feel was aware?" She is reported as responding "I don't think so, there were others in the room and they were close to us. But if they looked, it was just like we were saying goodbye. Maybe people picked it up, but I didn't see anyone realise it. I wasn’t focusing on that at the time." She was then asked if she wished Ms Walton to interview anyone else. It is reported she gave the following response. “I cannot think of anyone that definitely saw what happened to me. On that basis, and for my own privacy, I would prefer for others not to be interviewed. There were six or seven embassy people there but in terms of managing it for myself, I would prefer no one else is interviewed. 5.24 Later, she made reference to a conversation between the claimant and a 13-year-old girl which occurred when ZZ was also talking to the claimant. She alleged he referred to the girl as pretty and attractive and stated "I felt that was an inappropriate comment." She then went on to say that having thought about matters she would be "comfortable" with Ms Walton interviewing Paul's wife. She was said to be the closest person to the incident. 5.25 On 15 January 2018, the claimant was interviewed. He was not told, prior to the interview, the nature of the allegations which were to be put to him at the interview.[3]It is unclear to whom this comment is attributed. - 6 - 5.26 He clarified the nature of the party and the timing. The party had finished at 19:00 and most guests left between 16:00 and 17:00. ZZ had been invited by Ms Papadrakakis, the claimant’s wife. At that time, he was unable to recall saying goodbye to ZZ. He confirmed it was a cordial party and when leaving, "People would get a kiss on both cheeks." He did remember ZZ arriving and being in the kitchen. He denied kissing ZZ on her lips when saying goodbye and referred to probably giving her a two cheek Italian kiss. He said there was no physical contact. 5.27 The allegation, that he put both hands on ZZ's breast, is then put. The respondent did not tell the claimant the allegation prior to this investigation meeting. 5.28 The claimant denied the allegation absolutely. Rubbing his hands down her front in a sexual manner is put as a further allegation. The claimant denied it. 5.29 He confirmed that there were many people around and he spent most of his time in the kitchen. He stated the farewells were happening in quick succession and that he would have been distracted by catering arrangements. He said he had no specific recollection of saying goodbye to ZZ. 5.30 He was asked whether he could think of any reason why the allegation may have been raised and stated he had no idea. He noted that Ms Walton had got the wrong date for the party and the wrong time. Ms Walton acknowledged that. 5.31 The claimant was unhappy with the nature of the interview he stated the following at the meeting – Rebecca, this is a serious allegation. I appreciate your position and the time you have taken to speak to me. But the absence of detail has been severely distressing for me and my wife. It is not an excuse but it has been difficult. I feel like you have approached me without any detail and in fact, when you first wrote to me, you said that there was a party in the evening. It was not an evening party. So I have received mixed information. I have felt extremely unprepared. I have told the truth to the questions. But given the seriousness of the allegations, this cannot be the end of my testimony. I do not want this to end based on the last 30 minutes. I have been informed of very serious sexual misconduct allegations and I do not accept that this amount of time is sufficient. However, you have told me that this is a fact finding exercise and that it is in the investigation stage. I would like to know the next steps, what your role is within the process, and I would like to make sure that if there is a danger of me being found guilty, that I have the chance to clear my name. 5.32 On 1 February 2019, the claimant sent a written statement, after he’d had time to consider the allegations. He noted that he had let ZZ out. He offered to provide a full guest list. He stated that there were people in close proximity who would have been able to see. He indicated that he believed his wife had seen him say goodbye to ZZ. - 7 - 5.33 There was a further interview with the claimant on 5 February 2019. During this interview, the claimant’s statement was considered. He was asked to explain why he remembered more. He stated that on reflection he remembered ZZ had asked about a taxi and that caused him to remember. He remembered seeing ZZ out of the front door and enquiring whether she needed taxi. He had a recollection of her pressing the button to the lift before he closed the door to the flat. He said there was nothing distinctive about her departure, apart from the taxi issue. 5.34 Ms Walton asked for more detail and the claimant indicated it would be necessary for her to see the layout of the apartment. Ms Walton never followed that up and did not obtain either a sketch plan or photographs. The claimant noted that the kitchen was no more than two metres from the front door. He sought to describe the layout carefully and noted that ZZ should be asked for her version of events. Ms Walton spent significant time with the claimant questioning in detail where he said goodbye and what could be seen. 5.35 Ms Walton referred to "a few further discrepancies." She asked whether there was dancing at the party and the claimant said there was around 6:30 but not before. He stated he was certain it was after ZZ had departed. He denied being drunk but confirmed he drank some alcohol. 5.36 On 15 February 2019, Ms Walton interviewed ZZ again. In that interview she is clear that she said goodbye to Ms Papadrakakis first. The was an attempt to explore with ZZ the exact sequence of events. She stated that Ms Papadrakakis had walked her to the door but then said that her memory about the matter was "quite hazy." However, she went on to say, "She definitely let me out of the flat." There is no indication at all that the claimant was at the door. She was adamant that Ms Papadrakakis let her out. 5.37 When asked about being agitated. She stated that she could only imagine it was because of what had just happened. This appears to be the reference to the alleged sexual touching, which, on that account, did not appear to have happened near the door, and it happened before saying goodbye to Ms Papadrakakis. 5.38 When asked where the claimant was when she said goodbye, she stated he was in the area between the kitchen and the living room. She described it as "the open area where the kitchen opened out into the living room. The music was on and he was dancing." She said, “Yes, I remember that he was dancing, or he may have just finished dancing. But it was definitely at the time when there was dancing, and I then went over to him to say goodbye.” 5.39 On 20 February 2019, Ms Walton interviewed Ms Isadora Papadrakakis, the claimant's wife. She stated, “We are trying to keep this process confidential." - 8 - 5.40 Ms Papadrakakis confirmed she had invited ZZ, whom she did not know well, but she’d had some interaction with ZZ. She believed that ZZ was new and not really integrated into the embassy. Ms Papadrakakis thought it would be nice to invite her. She was unclear as to the timing of the dancing but believed it was around 16:00 and then it stopped, and everything quietened down. She said it was brief, a couple of tracks. She recalled the claimant dancing. She confirmed both she and the claimant drank two or three glasses during the party. She confirmed the claimant was not drunk. She described the claimant had been actively involved in facilitating the party and said neither of them socialised significantly. 5.41 She confirmed that she had a snapshot recollection of ZZ leaving and stated the claimant was in the kitchen then moved out of the kitchen to escort ZZ to the door. She saw him as far as the hallway. She recalled there were quite a few people around, but did not recall who. She had the impression ZZ was not in high spirits, and put it down to a "Brexit grilling" given by a friend. 5.42 Ms Walton specifically asked, "Can you think of any reason why these allegations have been raised against Paul?" Ms Papadrakakis stated it would be speculation and then gave some possibilities in response to the specific question. First, she thought ZZ may have been disgruntled about embassy work. Second, she may be conservative about the Italian style of greeting. Third, there was a possibility of a psychological issue, and she suggested this because she was absolutely certain the claimant would not "lay a hand on her." 5.43 Throughout this process, there were reviews by the CAP. However, no detail has been given of any suggestion or input: no minutes or other documentation exists. 5.44 Ms Walton completed her report on 21 March 2019, having had some input from the CAP. There were five people on the case panel and in addition Ms Rebecca Walton acted as investigator. The report states "The case panel checked evidence as it emerged, agreed next steps and recommended standards and, when necessary, sought legal advice to ensure proper process." No further detail is given. 5.45 The report exhibited a number of appendices, which included relevant statements. The report identified kissing on edge of her mouth and moving hands down over her breasts in a sexual manner as the allegations. 5.46 No other witnesses were interviewed. The explanation given is "There were no other witnesses named by either [ZZ] or PS.” Mr Patel’s evidence contradicts the report’s stated reason for not interviewing witnesses. He told the tribunal that no further witnesses were identified and called because the panel "felt the witnesses would not have seen anything." - 9 - 5.47 Ms Walton stated the purpose of the CAP was "to establish as much detail as possible and to prevent any bias entering into the interviews." 5.48 The report goes beyond presenting the evidence and contains a lengthy analysis of Ms Walton's reflections on the strength of the evidence of the claimant. She is critical of his “tone.” She states He “made this response in an unexpectedly throw away manner, as if getting details, even estimations, quite wrong, seemed not to matter. This cast a shadow over earlier recollections carefully established through questioning.” 5.49 There is no comparable analysis of, or commentary on, ZZ’s inconsistencies, even though it is acknowledged that her recollection was hazy and there was a clear discrepancy in her account about who saw ZZ to the door. The differing way the report treats their respective evidence is stark. 5.50 By letter of 3 April 2019, the claimant was invited to a disciplinary interview. The allegation was as follows: During a party held at your home on the afternoon of Sunday 16th December 2018, you deliberately put your hands on [ZZ]’s breasts, rubbing down in a sexual manner. 5.51 The allegation about kissing on the lips was included in the investigation report, but was not put forward as an allegation of misconduct. 5.52 The claimant was sent the investigation report, but the original allegation, as set out by Mr O’Flaherty on 14 January was withheld, as was his email. 5.53 The letter does not say the claimant can bring witnesses. There had been previous reference to confidentiality. I accept the claimant's evidence that he was not clear about what would constitute a breach of confidentiality, or his rights or obligations in relation to calling witnesses. 5.54 The disciplinary hearing took place on 15 April 2019. The claimant was critical of the investigation report. He questioned the approach to gathering evidence, the approach to interview, and the interpretation of evidence. He stated there was a lack of clarity in the process. He had been informed that the grievance framework has been applied initially to the fact-finding investigation before it moved to a disciplinary process. He was critical of the failure to have an initial fact-finding call. He was critical of the lack of transparency in the CAP meetings. He asked for the complete summary from Mr O’Flaherty. He stated there was a lack of concrete evidence. He disputed ZZ's testimony and her consistency. He was critical of the investigator's conclusions and the approach to the investigation report and the basis for deciding matters on the balance of probability. He produced a plan of the flat and photographs, which were considered by Ms Ewart-Biggs, but were never shown to ZZ. He reiterated that he could provide a full list of all guests. - 10 - 5.55 The claimant raised discrepancies in ZZ's account particularly with regard to where the alleged incident occurred. He raised the general confusion in ZZ’s account about what happened when and where. He was critical of the methodology of the interviews and the failure to seek any contrary evidence, or make any effort to find it, and in particular, the failure to identify any witnesses to the alleged incident. He was critical of the failure to inform him of the allegation prior to the initial interview giving no opportunity to prepare adequately or at all. 5.56 The notes of the interview were provided to the claimant, who provided comments. 5.57 Ms Ewart-Biggs records that the investigation dropped the allegation of kissing on the mouth, as the investigating officer found "it might have arisen as an accident, in the normal way of Italian social kissing, on greeting and departing." 5.58 Ms Ewart-Biggs decided to interview ZZ; she says this at paragraph 29 of her statement: 29. I decided that it would be appropriate for me to speak to the complainant. My thinking at the time was that it would essentially come down to a question of who I believed, given the Claimant denied the allegation. I wanted to meet her, rather than read about her interview with Rebecca and rely on my conversation with Rebecca. This was a very important decision, and I didn't feel comfortable making it without speaking to the complainant and hearing her account directly from her, in the same way that I had from the Claimant at the disciplinary hearing. I wished to understand the sequence of events from the complainant directly and also understand her expectations of the process being undertaken by the British Council. I also wanted to understand the impact that the alleged behaviour had had on her. 5.59 On 24 April 2019, Ms Ewart-Biggs spoke with ZZ. Her statement gives no detail. The record of the interview is brief and is not commented on in Ms Ewart-Biggs's statement. 5.60 It is apparent that Ms Ewart-Biggs spoke to various individuals. In her statement she says the following: 31. I sought advice from HR and raised my decision with the CEO, Sir Ciarán Devane. My email chain with Nita Bewley on this dated 24-25 April 2019 is at pages 621 to 622. I did not ask Ciarán to ratify the decision and he did not know the details, but I had to ensure that he, as my line manager and CEO of the organisation, was aware of my decision. I was very clear that the decision was mine and aware from Nita that Ciarán would be dealing with the appeal, if the Claimant chose to appeal the decision. As CEO, Ciarán needed to be aware that the process was ongoing and told of the decision that I was making before it became official. This was also necessary from a governance perspective, in case he received any queries from the Council's Trustee Board about the decision. 32. In accordance with British Council policy, I consulted Catherine Ward, then Global People Director about the Claimant's dismissal . I also discussed my decision with Rebecca Walton, as the Claimant's line - 11 - manager she needed to be aware, so that she could manage the situation and would be ready to step in and pick things up as required, following the Claimant's dismissal. … 34. I took advice from Sanjay Patel, HR Director Global Employee Relations and Reward on the next stage of the process, given that the Claimant remained in Italy [page 623]. It was felt that conveying the decision over phone/video would be better as the Claimant would remain at home and have the support of his family rather than flying to the UK to receive the decision, spend time in the British Council office and then have to fly back again. It would also avoid any further delay. 5.61 Whilst it is clear that Ms Ewart-Biggs consulted a number of people, the purpose and effect of the consultation is not clear. 5.62 The disciplinary hearing was reconvened on 7 May 2019. In the meeting Ms Ewart-Biggs stated she had no reason to doubt the events as described by ZZ. As for the points raised by the claimant, she asserted "I find the points you raise in your response as to not to be material to the substance of the allegation." In her evidence, she explained she was focusing narrowly on the incident itself, being the moment of the alleged touching of ZZ’s breasts in a sexual manner, and not the surrounding circumstances, or any discrepancies in ZZ’s general account. 5.63 The rationale for Ms Ewart-Biggs decision is set out at paragraph 38 and 39 of her statement as follows 38. I found the allegation to be true. I was satisfied that an appropriate investigation had been conducted and I agreed with Rebecca's view that the complainant's evidence was credible and consistent. I had no reason to believe that the complainant was lying or had motive to do so. I listened to the significant impact that it had had on her, her wellbeing and her anxiety levels. I had spoken to both her and the Claimant and having considered both their accounts, was satisfied that the inconsistencies that the Claimant presented in his defence were not material to the allegations. 39. In essence, I asked myself whether I believed the complainant or the Claimant. I found that on the balance of probabilities, I did believe the complainant and I did not believe the Claimant. I accepted that I was never going to be 100% sure about what had happened. One thing that I recall playing a part in my decision making is the way that the Claimant approached his response to the allegation. He denied the allegation, but also made arguments as to why and how it could not have happened. The Claimant did not accept that there was a possibility that it could have happened, despite his lack of recollection. The Claimant did not offer an apology, even on the basis that it could have happened. He pointed to inconsistencies in the complainant's account and was adamant that this proved that her account could not be relied upon. I disagreed. The Claimant's memory of the incident itself was clear and she was open about the fact that she had a hazy memory of some of the detail the Claimant was referring to in relation to the events before and after the incident. For example, she was hazy on where she had left her coat and I found it credible that her memory was entirely focussed on the moment of the inappropriate touching which she said had caused her to feel violated. The - 12 - fact that she had reported the matter promptly the next day influenced my thinking. I was satisfied with her explanation and believed her when she told me that she felt violated, humiliated and disrespected. This was consistent also with her telling Rebecca Walton in the investigation that she had felt violated. 5.64 She concluded that given the nature of the misconduct dismissal was the appropriate sanction. She considered other sanctions including demotion, but concluded they were not appropriate. 5.65 The dismissal letter was dated 7 May 2019 and the material part reads as follows:• I have no reason to believe [ZZ] was lying or had motive to do so. Having spoken to [ZZ] in order to follow up on the some of the inconsistencies you believe were present in the earlier interviews, I am satisfied that these are not material to the allegations.• I am satisfied that an appropriate investigation has been conducted and I concur with the view that [ZZ] is a credible witness. I found her to be thoughtful, clear, factual and consistent in her description of the sequence of events.• Considering all of the facts and on the balance of probabilities I find the allegation to be true. 5.66 The claimant appealed by letter of 14 May 2019. 5.67 The claimant identified a number of grounds of appeal. He questioned whether the witnesses had been properly examined and highlighted the importance of corroboration. He offered new evidence which had been identified after the context had been clarified further. He noted ZZ should be able to recall who was in the vicinity and her refusal to name them should be taken into account. He complained that he was required to produce witnesses of an event that did not happen in an undisclosed and disputed location. He complained that the need for confidentiality had limited his ability to canvas evidence. He nominated three individuals who may be able to assist. 5.68 The claimant noted that evidence had been withheld which included appendix 2, notes of any CAP meeting and the third interview with the ZZ. 5.69 He maintained the disciplinary penalty was too severe in a case where there was no concrete or corroborated evidence. 5.70 He complained that there were procedural faults including an early assumption of his guilt. 5.71 He complained that the interviews were inappropriate and that the interviews of ZZ had not been with the intention of finding the facts. He did not consider the nature and tone to be impartial. He considered that the second interview with ZZ was an exercise in leading ZZ to rebut his - 13 - 5.72 He questioned the external influence of the FCO. 5.73 The facts I can find in relation to the appeal are limited. Mr Patel gave some advice, but his evidence predominantly refers to the documents and his opinion as to the thought processes of Mr Mark Stevens who conducted the further investigations and Sir Ciarán Devane who had responsibility for the final decision. I received no direct evidence from Mr Mark Stevens or from Sir Ciarán Devane. 5.74 The appeal investigation process was complicated and involved. 5.75 Mr Stevens did produce a report. It is clear that a total of six further witnesses were interviewed. None of them suggested that there had been any inappropriate contact between the claimant and ZZ. 5.76 In the absence of relevant witness testimony, I will record the key events as they appear from the documents. 5.77 Three witnesses were interviewed on 15 May 2019 being Ms Marina Engel, Ms Giula Nabieri, and Mr Tom Sneddon. 5.78 On 10 July 2019, Mr Stevens interviewed ZZ. There were limited questions put to her. She was required to confirm whether there had been a misunderstanding and whether the touching was deliberate and sexual. ZZ asserted that she was not surprised that no one had seen anything untoward and stated it happened in the context of the goodbye and stated "nobody would have looked at me as it was happening." 5.79 ZZ gave the following explanation for why no one would have seen anything. I am not surprised people do not remember. They would not have seen anything untoward happening. The incident did not take a long time to happen, it was quite quick, just a few seconds. 5.80 Her reason was not explored. There was no exploration of the alleged relative positions of the claimant and ZZ when the alleged incident occurred, or why it was alleged that a deliberate holding of the breast with two hands and rubbing down in a sexual manner would not have been obvious to anybody who had been looking in the relevant direction. 5.81 There was no attempt to identify whether she could remember who was in the vicinity. There appeared to be little attempt to clarify exactly where the incident took place. 5.82 The three possible theories put forward by Ms Papadrakakis were put to her. She rejected those explanations, but it was not explored further. 5.83 Mr Stevens did explore with ZZ what had happened immediately after the incident. In that context, ZZ confirmed that she had texted a friend around - 14 - 5:30 and then another friend early the next morning at around 02:00. She stated that she should have kept the first texts but had deleted them because she had fallen out with her friend. She offered to send a screenshot of the exchange with her friend Gemma. 5.84 She was asked if she could recall what was in the first texts to the male friend and stated the following: Yes, I was still in denial, but I said something along the lines of ‘oh this guy at the party I was just at was sleazy and tried to kiss me’. I had indicated that something happened that I was not comfortable with. 5.85 Mr Stevens did not ask why the alleged assault was not referred to. 5.86 ZZ confirmed she would send a screenshot of the text to Ms Gemma Ralph, and the email to the ambassador. None of these documents had been acquired by the original investigation or considered by Ms EwartBiggs. 5.87 No attempt was made to recover, or obtain, the chain of texts reported as sent from 5:30. It may have been possible to identity the male friend and ask for the texts. 5.88 On 15 July 2019, Mr Stevens interviewed Ms Walton; the purpose of this interview is unclear. 5.89 Three further witnesses were interviewed. None corroborated ZZ's account. None reported any inappropriate behavior at the party. 5.90 On 19 September 2019 Mr Stevens produced his report. The report addresses Mr Stevens conclusions in relation to each of the matters raised by the claimant. 5.91 He interviewed Gemma Ralph, the person whom the claimant sent a text to later in the evening on the day of the alleged assault and sought advice from the morning after the alleged incident. 5.92 In his report, Mr Stevens appears to limit his consideration to the specific points raised by the claimant. In relation to procedural faults, he recommended that the appeal would not be upheld. He rejected the allegation of inconsistent approach and recommend it not be upheld. He did accept that some documents had not been given to the claimant including appendix 2, but stated he concluded it made no difference and recommended it not be upheld. He did not consider that Ms Walton had behaved prejudicially, and recommended it not be upheld. 5.93 He considered whether there was an absence of concrete evidence. The report is confusing, but it appears he found that there was no evidence to corroborate the incident reported by ZZ. He reached the conclusion there was no corroborating evidence in support of the claimant's account. He placed significance on ZZ's reporting of events immediately after the - 15 - incident and stated, "I can find no motive at all for why ZZ would make such a claim if it were not true." 5.94 He did not consider the six statements to be relevant. 5.95 Overall, he recommended that no ground of appeal should be upheld. 5.96 He considered dismissal was the appropriate sanction. Overall, he recommended the appeal be dismissed. As I have noted, the findings I can make in relation to this appeal investigation are limited because Mr Stevens did not give evidence. 5.97 Sir Ciarán Devane made the final decision to refuse the appeal. He was not called to give evidence to the tribunal and the claimant had no opportunity to challenge his evidence. I have not found the evidence of Mr Patel to be of assistance in seeking to understand the thought processes of Sir Ciarán Devane. I have reviewed the appeal outcome letter, which is dated 25 September 2019. In this letter, he says he agrees with the recommendations made by Mr Stevens. The relevant part of this letter reads as follows: Procedural faults In relation to the original investigation and disciplinary process; interview approach; external influence from the FCO; appointment of original investigator; non-disclosure of evidence, Mark has reviewed all of the documents and interviews related to this case he can see no evidence that would have led to a different outcome. Mark recommends that this part of the claim is not upheld and I agree that this is correct. New evidence: Mark has reviewed the new evidence you submitted and interviewed the witnesses you nominated. In summary he found:• The witnesses you put forward as a part of the appeal have not provided any materially significant information that would, in his view have changed the outcome of the original investigation.• Statements provided by witnesses about your overall character or disposition at the party do not, in Mark’s view, provide any additional information that would have changed the outcome of the original investigation. Mark recommends that this part of the claim is not upheld and I agree that this is correct. Disciplinary penalty - 16 - Mark has reviewed the disciplinary penalty applied to you in the original disciplinary hearing and concludes that the penalty was appropriate and consistent with a finding of gross misconduct. I agree that this is correct. Conclusion Mark concludes that having taken into account all of the new evidence submitted to him, reviewed the process of the original investigation and disciplinary hearings and considered the severity of the disciplinary penalty he recommends that the decision of the original investigation be upheld. I agree with Mark’s recommendations. I therefore confirm that your summary dismissal stands meaning your employment terminated on 7 May 2019… 5.98 After the appeal, further evidence was submitted. On 17 October 2019, the claimant wrote to Sir Ciarán Devane having obtained a statement from two individuals, Ms Monica Marziota and Mr Michele Gerace. He explained that the evidence had not come to light earlier because he had been cooperating with the request for discretion and the need to respect the reputation of both institutions. The evidence in fact come to light by chance following a meeting with an acquaintance. 5.99 Ms Marziotta wrote to the British Council and confirmed she and Mr Michele Gerace had witnessed ZZ leaving, and the goodbye given by the claimant. The letter was countersigned by Mr Gerace. It corroborated the claimant's account. The most relevant part reads: Michele and I were standing in the entrance to the open area at the time. My attention was caught by the guest in question as she brushed past me into the room. She made her presence known by announcing to a group standing close by that she was leaving. She then went forward towards Paul, who at the time was busy coming in and out of the kitchen serving coffee between seeing off other guests. I was at a distance of two metres or less from them, behind and slightly to the side of the lady, and able to see them clearly. They exchanged a few words, smiling, and then said goodbye with a kiss on each cheek followed by a hug. The limited physical contact was brief, friendly and straightforward. The interaction took place in direct proximity and clear view of a number of other guests including two of Paul’s children, Fabian and Roman, not a single one of whom appeared to register anything remotely unusual. 5.100 She confirmed she had not offered testimony earlier because she had been unaware of the situation. 5.101 Mr Patel discussed the evidence with Sir Ciarán Devane and advised that it was possible to reopen the appeal under the respondent's procedures. Mr Patel's evidence is that he offered no opinion as to the appropriateness of reopening, and to the extent he gave any advice simply said reopening was not automatic. 5.102 Sir Ciarán Devane refused to reopen the matter. He wrote to the potential witnesses and to the claimant. To the extent he gave reasons, they are in the letter to the claimant and are as follows. - 17 - Re-opening an internal process may be appropriate in certain circumstances, for example, if key relevant evidence is over-looked in the internal process (deliberately or carelessly) or evidence that could not have been obtained at the time comes to light subsequently. However, having given the matter a lot of thought, I do not feel that this is the case here. You were given a number of opportunities in a lengthy internal process to identify relevant witnesses but did not identify Ms Marziota and Mr Gerace as having relevant evidence, even though they say in their letter that they were in the area of the flat most relevant to the allegation. Also, despite your reference to confidentiality being dictated, it was made clear to you that confidentiality was not absolute. You were invited to name further witnesses and all 6 witnesses you named were interviewed at the appeal stage. As the new evidence could have been reviewed during the appeal process if you had put forward Ms Marziota and Mr Gerace as witnesses, it would only be appropriate to re-open the investigation if the evidence on its face is compelling that the conclusion of the investigation was a mistake. I do not believe that such weight can be given to the recollections in this letter, particularly so many months after the event occurred. 5.103 I have no further evidence for why he concluded that the new evidence was neither compelling nor indicated a mistake. The law6.1 Under section 98(1)(a) of the Employment Rights Act 1996 it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal. Under section 98(1)(b) the employer must show that the reason falls within subsection (2) or is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. A reason may come within section 98(2)(b) if it relates to the conduct of the employee. At this stage, the burden in showing the reason is on the respondent.6.2 In considering whether or not the employer has made out a reason related to conduct, in the case of alleged misconduct, the tribunal must have regard to the test in British Home Stores v Burchell [1980] ICR 303, and in particular the employer must show that the employer believed that the employee was guilty of the conduct. This goes to the respondent’s reason. Further, the tribunal must assess (the burden here being neutral) whether the respondent had reasonable grounds on which to sustain that belief, and whether at the stage when the respondent formed that belief on those grounds it had carried out as much investigation into the matter as was reasonable in all the circumstances. This goes to the question of the reasonableness of the dismissal as confirmed by the EAT in Sheffield Health and Social Care NHS Foundation Trust v Crabtree EAT/0331/09.6.3 In considering the fairness of the dismissal, the tribunal must have regard to the case of Iceland Frozen Foods v Jones [1982] IRLR 439 and have in mind the approach summarised in that case. The starting point should - 18 - be the wording of section 98(4) of the Employment Rights Act 1996. Applying that section, the tribunal must consider the reasonableness of the employer's conduct, not simply whether the tribunal consider the dismissal to be fair. The burden is neutral. In judging the reasonableness of the employer's conduct, the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer. In many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another view. The function of the tribunal is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, the dismissal is fair. If the dismissal falls outside that band, it is unfair.6.4 The band of reasonable responses test applies to the investigation. If the investigation was one that was open to a reasonable employer acting reasonably, that will suffice (see Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.)6.5 The claimant relies on Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522, and in particular paragraph 73. The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of on one side or the other.6.6 The tribunal should consider the ACAS code of Practice on Disciplinary and Grievance Procedures 2015. The provisions are admissible in evidence and “any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining” fairness. Section 207 Trade Union and Labour Relations Consolidation Act 1992 provides: - 19 -(1) A failure on the part of any person to observe any provision of a Code of Practice issued under this Chapter shall not of itself render him liable to any proceedings.(2) In any proceedings before an employment tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.6.7 The most relevant parts of the 2015 code are set out below.[4]That said, whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this:• Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.• Employers and employees should act consistently.• Employers should carry out any necessary investigations, to establish the facts of the case.• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.• Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.• Employers should allow an employee to appeal against any formal decision made. …[5]It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. …[9]If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. …[11]The meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.[12]Employers and employees (and their companions) should make every effort to attend the meeting. At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call - 20 - relevant witnesses, they should give advance notice that they intend to do this. …[23]Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct. …[26]Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.[27]The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case. … Conclusions7.1 The disciplinary process involved numerous people. It generated significant documentation.7.2 The core facts are clear. The claimant occupied a senior position. The relevant events occurred at a private afternoon brunch party. There were at least fifty guests some were family, some friends, and some acquaintances associated with the British Council or the embassy. There were children present. It was a relatively small flat.7.3 ZZ was an acquaintance of Ms Papadrakakis and someone whom the claimant may have come across professionally.7.4 Following the party, ZZ made a serious allegation against the claimant. She alleged that he, without any provocation, first kissed her on the side of her mouth,4 and then place both hands on her breasts and rubbed down in a sexual manner. Objectively this could be a sexual assault. In the UK such conduct may constitute the crime of sexual touching. The respondent has referred to it as sexual harassment. I do not know whether it could be a crime in Italy. This assault took place in the flat in full view of numerous guests. ZZ alleged no one would have seen anything, other than a normal goodbye.7.5 It is necessary to stand back from much of the detail and focus on what this tribunal must consider. The respondent must establish the reason for dismissal. Thereafter, the burden is neutral when considering reasonableness. 4 As noted above, there is no clear distinction between the side of the mouth and the lips identified at any time, and the two appear to have been used interchangeably. - 21 -7.6 This is a misconduct case where the conduct in question is disputed. The ACAS code of practice is relevant. Paragraphs 4 and 5 stress the importance of carrying out necessary investigations. The purpose is to establish the facts of the case, so the evidence can be presented at the disciplinary hearing. Paragraph 9 provides that notification of the alleged misconduct must be sufficient to enable the employee to prepare to answer the case. Copies of relevant evidence including witness statements should be provided.7.7 There must be a disciplinary meeting. Paragraphs 11 and 12 provide the employee must be permitted to set out the defence. Paragraph 26 to 29 provide for an impartial appeal.7.8 These principles are broadly reflected in the respondent's own policy. The relevant section on conducting the investigation provides that the investigation should include interviewing the employee, those directly involved, and possibly witnesses. It must gather relevant documentation both written and other evidence, as appropriate.7.9 This respondent appointed a panel, the CAP, whose sole function was to consider lines of enquiry and to ensure fairness.7.10 In cases of disputed misconduct, it is necessary to consider whether the person dismissing believed the allegations. The relevant belief normally establishes the reason. If the reason is established, it is necessary to consider whether there were grounds to sustain the belief, and at the time the belief was formed based on those grounds whether there had been sufficient investigation.7.11 The claimant was dismissed by Ms Ewart-Biggs. It is her actions that I must focus on. In her role as the decision-maker, there is no reason why she should not seek advice. However, the responsibility for ensuring that there were supporting grounds based on a reasonable investigation is hers.7.12 The first question is whether she believed that the conduct occurred. In Abernethy v Mott, Hay and Anderson [1974] ICR 323 the Court of Appeal held: A reason for the dismissal of an employee 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.7.13 Paragraph 12 of Ms Ewart-Biggs statement says the following 12 It was alleged that the Claimant had kissed the complainant on the edge of her mouth and moved both his hands down over her breasts in a deliberate and sexual manner on 16 December 2018 in the Claimant's flat in Rome at a Christmas brunch… - 22 -7.14 Paragraph 37 states "I found the claimant had committed gross misconduct." At paragraph 38 she states, "I found the allegation to be true."7.15 The letter of dismissal gives no further clarification.7.16 Her evidence was that she took a narrow view of the incident. It was unclear whether she concluded that the claimant had kissed ZZ on the side of her mouth, and if so whether that was different to kissing on the lips. It was not part of the formal allegation, but it was a relevant circumstance, and had been presented by ZZ as part of the relevant alleged assault.7.17 It is clear that she decided the claimant had placed both hands on ZZ's breasts and rubbed down in a sexual manner. She did not decide where in the flat the assault had taken place. She did not decide the sequence of events leading up to the alleged assault. She did not decide if anyone had seen the incident, or where they were in relation to the alleged incident.7.18 As to the events leading up to the alleged incident, she decided ZZ’s evidence was hazy. It is less clear whether she found the claimant's account hazy. However, she did believe there was a "discrepancy" in his account. In her evidence before the tribunal the only alleged discrepancy she could identify was whether there been dancing, and if so at what time. She identified no other discrepancy in the claimant's evidence.7.19 At paragraph 39 of her statement, she explains that she considered her role was to decide whether she "believed the complainant or the claimant." She states she decided on the balance of probability that she believed the complainant. Her evidence goes on to say that she "was never going to be 100% sure about what had happened." She clarified that she was 100% sure that the sexual assault occurred, but she was not 100% sure about any of the surrounding circumstances, which would include where it happened, who witnessed it, and the sequence of events.7.20 I find Ms Ewart-Biggs concluded the claimant's recollection was hazy, but came to no clear conclusions about the general circumstances, other than the timing of dancing at the party, and the potential discrepancy in the claimant's account about this single matter.7.21 I am satisfied that Ms Ewart-Biggs dismissed the claimant because she believed that the claimant had placed both hands on both of ZZ's breasts and rubbed down. It is that single action which she found to be gross misconduct. I am satisfied that her belief that the claimant touched ZZ’s breast in a sexual manner is the sole or principal reason why she dismissed.7.22 The next questions I must consider are first whether, at the time she reached her belief she had reasonable grounds on which to sustain that - 23 - belief, and second, whether at the stage when she formed that belief on those grounds she had carried out as much investigation into the matter as was reasonable in all the circumstances.7.23 Viewed narrowly, there were grounds to sustain the belief. ZZ had made an allegation. That allegation provided grounds. However, it may not have been reasonable for her to rely on those narrow grounds, as there must be a reasonable investigation, and if that reasonable investigation either does or could undermine the narrow grounds, it may be unreasonable to fail to take that into account. In considering whether it was reasonable, it is necessary to look at the surrounding circumstances, and in particular to consider whether, at the time the belief was formed based on those grounds, an adequate investigation had been undertaken.7.24 The investigation will be adequate if it was one which was open to a reasonable employer acting reasonably.7.25 It was for Ms Ewart-Biggs to decide. It is for her to review the available evidence, and to consider whether the investigation was adequate.7.26 During her evidence before the tribunal, Ms Ewart-Biggs agreed that in cases where there is disputed conduct, it is important to consider whether there is any evidence corroborating one account or the other7.27 As to what such corroborating evidence may be, she identified the following matters as important: consistency of account; any contemporaneous documents; detail of the impact on the complainant; and any witness evidence. She also confirmed that making an assumption about what a witness may have seen would be inappropriate.7.28 It follows that Ms Ewart-Biggs understood the importance of seeking relevant evidence in situations where the circumstances of alleged misconduct are disputed.7.29 The material before Ms Ewart-Biggs was limited. The fact that material should have been available, which had not been obtained, was obvious from a simple reading of the relevant documents disclosed to her, including the report of Ms Walton.7.30 Ms Ewart-Biggs sought no further documentation, but she did interview ZZ.7.31 I do not need to record my analysis of all of the evidence before me. I have had regard to all of the evidence. I will consider the key points relevant to my decision. I will consider the following important general areas: the clarity of the allegation; the contemporaneous documentation; potential witnesses; and the adequacy of the investigation. In each case, I will consider what should have reasonably been understood by Ms EwartBiggs at the time she made her decision. - 24 -7.32 Ms Ewart-Biggs took a narrow view of the allegation. She concentrated solely on the moment of physical contact. In doing so, she put from her mind the more general circumstances, and failed to consider whether they impinged on the clarity and reliability of ZZ's evidence.7.33 Ms Ewart-Biggs accepted that ZZ's memory of, and account of, the circumstances leading up to the alleged assault was hazy. Whist she describes the recollection as “hazy.” This does not capture adequately the difficulties in ZZ’s account. It was clear that there was a serious lack of clarity in ZZ's account about the circumstances leading up to the alleged assault. ZZ’s account materially changed. In Mr O’Flaherty’s original note, it was ZZ's position that she said goodbye to Ms Papadrakakis first, and only then approached the claimant. She alleged she left immediately after. That remains the position on 14 January. Thereafter, her account began to change. By 15 February, she stated that it was Ms Papadrakakis who had walked her to the door. When asked about this, she stated her memory was hazy.7.34 The problems with ZZ’s account were recognised. By 14 March, Ms Walton stated she could conclude little from the sequence.7.35 Against this, the claimant's evidence was always consistent, albeit when the initial allegation was put to him he had no immediate recall.7.36 Ms Walton did, note an obvious reason for why the claimant’s first account may have been incomplete. In her report she said “It was clear, and it was to be expected, that PS was on edge and unprepared. He was clearly shocked and strongly denied the allegation.” Yet it was the content of that interview which was later said to constitute a careful exploration of his7.37 ZZ did give various accounts as to when she said goodbye to the claimant. One of those accounts was that she approached him when he was dancing, or possibly when he had just finished dancing. Thereafter, he said goodbye, and this would put the incident somewhere other than the door to the flat. However, she ultimately said her recollection was hazy and she was not sure where it happened.7.38 It follows, from ZZ's evidence, that it was not possible to identify where the alleged incident took place.7.39 ZZ maintained that there were individuals present, but that no one would have seen anything, and anyone who was looking, would have seen a normal goodbye. Neither the investigation nor Ms Ewart-Biggs sought any explanation for why ZZ would hold that view.7.40 Ms Ewart-Biggs focused on the moment of the inappropriate touching. Her evidence to the tribunal was that the contact constituting the assault was "fleeting." This was not consistent with the evidence given by ZZ who referred to the incident as spanning several seconds. - 25 -7.41 No attempt was made by Ms Ewart-Biggs to understand the relative positions of the claimant and ZZ. It may have been possible that his hands were obscured because the contact was close. It may have been he reached forward, there being space between them. Ms Ewart-Biggs did not ask the question and failed to clarify the detail of the allegation. This was a serious omission. Such detail would, at the very least, have been relevant to considering whether it was likely observes would have seen the alleged assault. It may have supported or undermined ZZ’s account. It may have case light on why she suggested that all that would have been seen was a normal goodbye.7.42 At no stage did Ms Ewart-Biggs adequately consider why no one would have seen the assault, or why ZZ suggested that all that could be seen was a normal goodbye.7.43 It follows that Ms Ewart-Biggss understanding of the actual assault was also hazy. It was clear from the evidence before the tribunal that she gave no consideration to the exact circumstances, or whether those circumstances would have been consistent with an allegation that no one could have seen the alleged assault.7.44 It should have been apparent from a simple reading of the available documentation that there were, potentially, contemporaneous documents which had not been disclosed. It is apparent that ZZ made contact with the embassy. It was possible that documents would have been generated. However, the investigation and the disciplinary failed to identify whether any contemporaneous documents existed. Such an enquiry was a requirement of the respondent's own policy, and a matter of common sense.7.45 It subsequently became clear that ZZ had, on her own evidence, an hour after leaving the party sent a text to an undisclosed male friend. A simple enquiry of her during the investigation or the disciplinary process should have revealed that there was contemporaneous documentation. The question was not asked.7.46 During the appeal process, ZZ confirmed that she deleted the text messages. It is possible that the texts would have existed at the time of the disciplinary.7.47 Moreover, it should have been clear that ZZ reported the matter to the embassy the day after the alleged incident. There was then a process where the British Council liaised, in some manner, with the embassy which ultimately led to the British Council inviting Mr O’Flaherty to file a formal complaint. That complaint was not given until 14 January 2019. In the meantime, CAP had been appointed and there had been numerous discussions. It was unclear to what extent, if any, ZZ had been involved and what information had been obtained from her. There is a significant gap in the timeline from 17 December 2018 to 3 January 2019. - 26 -7.48 The claimant is entitled to see the relevant documentation. Ms EwartBiggs’ role encompasses ensuring that relevant documentation is not only before her, but before the claimant. However, it is clear there had been no attempt in the investigation to identify whether there was any contemporaneous documentation or to obtain it. That should have been obvious to Ms Ewart-Biggs. She gives no adequate explanation for why she failed to identify and obtain the relevant documentation.7.49 It follows that at the time she made her decision, she had no idea whether there was contemporaneous documentation. She knew, from the policy, that she should have obtained it. She had in mind that it would have been relevant evidence which could have corroborated either the claimant’s or ZZ's account. She gives no adequate explanation for why she failed to observe the deficiency, or seek to rectify it.7.50 Ms Ewart-Biggs did have in mind the alleged impact on ZZ. As for the relevant evidence, she relied entirely on the statements of ZZ. It is unclear what role this played in her decision. It is cited as a factor at paragraph 38. Ms Ewart-Biggs believed that the impact had been significant. It had affected ZZ's well-being and had caused anxiety. It is unclear whether she formed the view that a finding as to the impact was relevant to deciding on the balance of probability whether the incident occurred at all. All that can be said is it was a factor she took into7.51 The only independent witness interviewed at the disciplinary stage was Ms Papadrakakis. Ms Papadrakakis gave clear evidence that she did not walk ZZ to the door, and thus contradicted ZZ's initial account. However, Ms Ewart-Biggs placed little or no reliance on Ms Papadrakakis's evidence, as she was assumed not to be independent. She did not explore the clear discrepancy in ZZ’s account.7.52 It was apparent that no other witness had been approached. It was clear ZZ had failed to give any adequate account of where the alleged incident took place. The claimant had offered to give a full guest list. It was apparent that ZZ had not been asked to identify who could have potentially seen the incident, despite stating that a number of people were in the vicinity. But she was not asked to identify them.7.53 The documents demonstrates that there was concern about confidentiality. It should have been obvious that the claimant's ability to identify witnesses was inhibited both by the lack of clarity of the allegation and also the discussions concerning the need to maintain confidentiality. Moreover, there had been a lack of clarity from the respondent as to who it would approach as a witness. There was an obligation in the respondent's own procedure to identify relevant witnesses. The policy did not say that it was for the accused to select witnesses. - 27 -7.54 Mr Patel gave specific evidence as to why witnesses were not interviewed. He said the panel’s reason was it "felt the witnesses would not have seen anything."7.55 His approach is particularly surprising when considered in the context of the alleged function of the CAP. The role of the CAP was to identify lines of potential enquiry and to ensure they were followed. Instead of applying logical thought and objective consideration, the CAP relied on a collective feeling that witnesses would not have seen the incident, and relying on that feeling, failed to identify the relevant evidence. The fact that approach was taken, was confirmed by Ms Ewart-Biggs during her evidence. She shared the feeling that no witness would have seen the incident. This despite her evidence to the tribunal that such an assumption would be inappropriate. Had Ms Ewart-Biggs reflected on the rationality of this, she would have been bound to conclude that, in the context of this alleged sexual assault, there was a real possibility that a witness would have observed the claimant placing both his hands on ZZ's breasts and rubbing downwards in a sexual manner during a goodbye which lasted several seconds. At the very least, it would have been necessary to explore why ZZ maintained that nothing would have been seen.7.56 It was this inappropriate, and unjustified, assumption which prevented the investigation seeking to identify appropriate witnesses who could be interviewed.7.57 I should consider the adequacy of the investigation. The investigation failed to identify the existence of contemporaneous documents. It failed to retrieve relevant documents either from ZZ, or as generated by her complaint to the embassy. The investigation failed to adequately explore ZZ’s account, and failed to identify the relevant circumstances of the alleged assault. This extended to the general circumstances as to where it occurred and in what manner. It also failed to identify the details of the alleged assault. The detail of the circumstances was directly relevant to establishing what potential evidence existed. Failure to establish what potential evidence existed prevented the respondent from pursuing it.7.58 Employers are not required to explore every potential avenue of investigation. The band or reasonableness applies to the investigation. It must be one which is open to a reasonable employer. In this case, the investigation is characterised by serous oversights and unreasonable assumptions. No reasonable employer would have failed to seek the relevant contemporaneous documentation, or to explore the circumstances of the alleged assault, or to seek relevant evidence from witnesses to the alleged incident.7.59 Ms Ewart -Biggs found the claimant’s account had discrepancies, albeit the only discrepancy relates to the timing of the dancing. This one matter appears to have been considered as relevant by Ms Ewart-Biggs and although her evidence on this is poor, taken as a whole it appears to be - 28 - cited as a reason for doubting the claimant’s account. Save for this one negative inference drawn against the claimant, no other relevant surrounding circumstance appears to have been taken into account.7.60 Making an assumption, based on feelings, that no witness could have observed the incident, is unreasonable. No reasonable employer would have taken that approach.7.61 It follows that when considering whether there were grounds to support the belief, I conclude that Ms Ewart-Biggs took a narrow view and failed to consider the relevant surrounding circumstances. Whilst she had in mind the potential importance of corroboration, including witnesses, contemporaneous documents, and contemporaneous accounts. Her narrow view contributed to her failing to ask whether the investigation was adequate. I find the investigation was not one that was open to a reasonable employer and at the time Ms Ewart-Biggs formed her belief the grounds she relied on were not supported by a reasonable instigation.7.62 During the submissions, the parties were asked to confirm whether there were any authorities on the relevance of independent evidence when considering the reasonableness of investigations. The parties were given permission to identify, and file, any relevant cases.7.63 The respondent filed a further submission which stated that no relevant cases have been found. Nevertheless, the respondent referred to 2 documents, which had not been raised at the hearing being: the ACAS Guidance on Handling a Sexual Harassment Complaint and the Crown Prosecution Service document: Rape and Sexual Offences - Overview and index of 2021 updated guidance. Neither document was referred to during the course of the hearing either in evidence, or in submissions.7.64 There is no attempt made in the supplementary submission to identify the specific relevance of the documents, or to establish the relationship with the submissions previously made.7.65 I have not found either document to be of assistance, and I should explain why, briefly.7.66Section 207 Trade Union and Labour Relations Consolidation Act 1992 does not refer to the ACAS guidance on Handling a Sexual Harassment Complaint. The guidance itself under the section "What you must do as an employer" says the following: "You must follow a full and fair procedure in line with the Acas Code of Practice on disciplinary and grievance procedures." These supplementary submissions appear to cite the guidance in support of the proposition that the complainant should not be doubted "simply because [the incident] happened away from other people or nobody else witnessed in." It relies on an example which states "after hearing the evidence from both sides and a fair process, you can still decide the case is valid if you believe the person who made the complaint." I observe that the application of the guidance is premised on - 29 - there having been a fair process. The assessment of that fair process must incorporate the principles under the 2015 code, as envisaged by the guidance.7.67 The Crown Prosecution Service document appears to be cited as authority for the proposition that prosecutors must not introduce a requirement for corroboration in a review process as one person's word can be enough. The quote is selective and it is clear there is a more general qualification that the evidence in its entirety must be assessed having regard to the guidance.7.68 I need to be very cautious in deriving any principles from these documents, or applying them as guidance. Section 207 identifies what codes are admissible in evidence, and neither of the guidance notes referred to are admissible pursuant to section 207.7.69 Taking the ACAS guidance in the round, it does nothing to undermine the importance of ensuring a fair process. That is underlined by reference the 2015 code. The guidance itself stresses the importance of keeping an open mind, and treating the complainant and accused equally. Further, it stresses the importance of needing to support both the person making the complaint, and the person accused. It specifically says of the person accused but he or she should be offered the same kind of support as the person who made the complaint which would include talking to them privately and allowing plenty of time, offering mental health support, and ensuring the person investigating the complaint is impartial and trained for the role. These principles cannot be applied directly in the current case, as there is no statutory basis for it. However, they are not inconsistent with the approach I have adopted above.7.70 Even more care must be exercised before applying the CPS guidance directly. As far as I am aware, there is no rule in law of England and Wales that accusations of criminal sexual assaults cannot succeed without corroboration. As a matter of law, they can. However, I view this guidance with extreme caution. This is not a case where the alleged assault happened away from other people, or where nobody could witness it. The opposite is true. Just because a case could be decided, in the context of criminal law, on the basis of one person's word against another, that does not mean that other relevant evidence should be ignored. I find this guidance of no assistance.7.71 I accept that there may be occasions when it would be fair for an employer to prefer the uncorroborated evidence of the complainant. However, where there are clear lines of enquiry, I doubt that an employer would ever act fairly by ignoring those lines of enquiry and limiting the decision to a simple question of whether the manager taxed with making the decision believed one person rather than another. If that were the case, employees would be vulnerable to any accusation made outside the context of work by any individual should a manager, without any adequate investigation, choose to believe the complainant rather than the employee, - 30 - with all the obvious risk of applying, even subconsciously, stereotyped views.7.72 At the very least, employers should bear in mind the guidance given in Salford Royal NHS Foundation Trust v Roldan above, and the potential for finding that the allegation has not been proven.7.73 I have very limited evidence concerning the appeal. Mr Patel's evidence is of little relevance. There is nothing in his evidence to suggest that the CAP modified its view on the appropriateness of acquiring witness evidence, and it appears his approach remained tainted by his unreasonable reliance on what Ms Ewart-Biggs and the CAP felt witnesses may have been seen rather than addressing whether there had been an appropriate investigation leading to a reasonable exploration of the evidence and identification of the facts.7.74 Appeals are important. A flawed appeal may lead to an otherwise fair dismissal being unfair. An appeal may lead to matters of unfairness being rectified.7.75 Appeals are sometimes categorised as re-hearings and reviews. Such categorisations must be treated with healthy caution, and labels may be misleading.7.76 Did the appeal rectify any deficiencies in the disciplinary process, such that any unfairness was addressed? It is possible that the answer can be reliably found from a consideration of the documents. But it cannot be assumed that producing the documents is sufficient.7.77 I should consider whether the appeal appears to have addressed those deficiencies I have identified. Thereafter, if appropriate, I should consider more generally matters of reasonableness.7.78 It does not appear that the appeal set out to rehear the disciplinary. Instead, it sought to identify the grounds of appeal as advanced by the claimant, and to deal with each. I will consider each of the elements identified by the appeal.7.79 The claimant identified several procedural faults. His allegation that there was inconsistency in the approach taken in interviews was rejected. It is unclear why. The investigation report clearly shows he was examined carefully on any matter of potential discrepancy, whereas ZZ was not. A cursory reading of the investigation report demonstrates that Ms Walton expressed strong and negative opinions about the claimant's evidence, but not about ZZ's. There was clear evidence of a serious disparity in treatment. It is unclear why his contention was rejected.7.80 The claimant complained about the external influence of the FCO. There is clear evidence of the involvement of the FCO at an early stage. The FCO was not requested to provide any relevant documents. Mr - 31 - O’Flaherty’s email of 14 January indicates a more general discussion about the claimant and demonstrates he was viewed negatively, yet this was not explored. There was clear evidence in support of the involvement FCO, and at least a potential for finding that there had been undisclosed negative conversations. There was direct evidence of the FCO raising concerns unrelated to the context of ZZ’s complaint. It is unclear why his concerns about the FCO were rejected.7.81 The claimant complained about non-disclosure of evidence. It is clear that documents were not disclosed to him, including two of the most important being Mr O’Flaherty’s complaint and his email which contained unexplained negative comments about the claimant. It is unclear why this was not considered important.7.82 The claimant complained that the onus had been put on him to prove the impossible by providing concrete evidence in circumstances where he had not been given adequate details. It is unclear why this was rejected. The appeal failed to identify that the CAP had actively advised that evidence should not be sought because it was felt the witnesses would not have seen anything relevant. This was a serious deficiency, and it is unclear why the appeal did not identify it.7.83 Mr Mark Stevens, who conducted the appeal investigation states that he was unable to find any corroborating evidence. However, the appeal does nothing to go on to identify that ZZ had not been asked to identify who observed the incident, or to explain why the respondent continued to take no active steps to seek the relevant evidence.7.84 Mr Stevens does place reliance of the fact that there were reports made by ZZ shortly after the party. He did identify that there were contemporaneous texts that she had deleted. It is unclear why he did not place emphasis on her destruction of texts, or the failure to gather all of the relevant contemporaneous evidence during the investigation.7.85 Mr Stevens also stated, "I can find no motive at all for why ZZ would make such a claim if it were not true." It is unclear the extent to which this influenced his decision, or whether he is suggesting, in some manner, that it is necessary for the claimant to demonstrate some ulterior motive before his account will be accepted. His reasoning is unclear.7.86 Six witnesses were interviewed. Only those individuals identified as possibly relevant by the claimant were interviewed. It appears the evidence of those witnesses was rejected because the incident was not seen. However, each gave clear evidence as to the nature of the party. They confirmed it would have been likely that the alleged sexual assault would have been observed. Their evidence supported the claimant's position, and undermined ZZ's assertion that no one would have seen the incident. However, that evidence was wholly rejected, and it is unclear why. - 32 -7.87 Some of Mr Stevens conclusions are questionable. He asserts the claimant was offered the opportunity to put forward witnesses, but he does not identify what he is referring to. Moreover, he fails to engage with the question of the respondent's responsibility to actively investigate. If there is an explanation for this, it is not before me. The relevant evidence has not been produced.7.88 I cannot find, from the documentation supplied, that Mr Stevens appreciated the lack of the clarity of the allegation and the surrounding circumstances, the absence of contemporaneous documentation, or the he respondent's obligation to investigate reasonably.7.89 I have even less evidence for why Sir Ciarán Devane rejected the appeal. I do not know what he considered to be the parameters of his role. I do not have evidence of his rationale, other than that contained in his letter rejecting the appeal. It appears that he accepted that Mr Stevens had identified the points of appeal properly and had investigated them adequately. He simply agreed with Mr Stevens. He failed to observe any of the difficulties which I have outlined.7.90 Whilst it is clear that six further witnesses were interviewed, their evidence was rejected, and there was no recognition that the respondent may be required to take a more active approach to identifying the relevant circumstances.7.91 It is unclear why the evidence of the six witnesses was rejected. There had been exploration at the investigation stage about the general circumstances, including the atmosphere of the party. It was explored by Ms Walton. Exactly why the atmosphere was relevant remains unclear. At various times there was refence to drinking and dancing. But this was a social gathering. It is unclear whether there was some suggestion that the conduct of the party generally was inappropriate. If that was the case, it was never said expressly. It may be there was some form of assumption that the tone of a party may make the allegation of sexual assault more likely. If that was contemplated, it was never made explicit. Given the apparent importance placed by the respondent on the nature of the party, it is not surprising the claimant put forward witnesses who could deal with it. The evidence of the witnesses undermined ZZ's assertion that no one would have seen the alleged incident, and it confirmed the nature of this family party. Yet this evidence was, essentially, dismissed.7.92 Ms Ewart-Biggs did place reliance on her belief that ZZ had no reason to lie. This does not appear to have been explored at the appeal stage. The appeal did not recognise the potential danger that a decision may be based in part on the failure of an employee to prove an ulterior motive. It is not an important point in the context of this case, given the other serious flaws I have identified, and I do not need to consider it further. However, I would doubt that it would be fair to find against an employee because he could not establish evidence of an ulterior motive. - 33 -7.93 Ms Ewart-Biggs’ made her decision based on her opinion of who was telling the truth. She says,” In essence, I asked myself whether I believed the complainant or the claimant.” It was clear that she based that decision on a very narrow view of the evidence.7.94 There is no evidence establishing whether Sir Ciarán Devane considered the specific approach taken by Ms Ewart-Biggs, or what view he reached in relation to it, or whether he considered there were deficiencies.7.95 The reality is that there were deficiencies in the disciplinary process, and they were clear on a simple reading the documents. The appeal did nothing to rectify those deficiencies. This appeal was not one which would make an otherwise unfair dismissal fair.7.96 Sir Ciarán Devane was involved further when fresh evidence was presented. Again, I have very limited evidence.7.97 The new evidence came from someone who specifically witnessed the claimant saying goodbye to ZZ. Ms Marziota stated she saw a completely normal Italian farewell greeting or "saluto."7.98 She confirmed there were others close by. She explained she had been late arriving, her attention was focused on the claimant, and that is why she had a vivid recollection. She confirmed that the reason for dismissal had only recently come to her attention and explained that she had not been aware of the situation previously.7.99 The claimant explained that he had maintained confidentiality and had not discussed the matter generally with the guests at his party. He explained he felt constrained to maintain that confidentiality.7.100 The only evidence I have of the reason for Sir Ciarán Devane rejecting the evidence is contained in his letter to the claimant. In this letter he acknowledges that the appeal can be reopened and gives certain examples, albeit it is not clear where those examples come from. One example is if evidence has been overlooked in the internal process. A second example is if evidence could not have been obtained at the time.7.101 He acknowledges that the claimant was required to maintain some form of confidentiality but says it "was not absolute." It is unclear what is meant by that. He clearly puts the onus on the claimant to name the witness. He goes on to say "It would only be appropriate to reopen the investigation if the evidence on its face is compelling that the conclusion of the investigation was a mistake. I do not believe that such weight can be given to the recollections in this letter, particularly so many months after the event occurred." This suggests that his only objection is the evidence may be unreliable given the passage of time. What element he considers to be unreliable is not identified. - 34 -7.102 Ms Marziota’s statement is the only direct independent evidence from a witness who states that she saw the goodbye between ZZ and the claimant. She has given a clear and rational explanation for why she remembered it. She describes why ZZ came to her attention. There is nothing in the statement which would suggest that her memory was unclear. The evidence, on its face, is relevant, clear, and compelling. If that evidence had been accepted by the respondent, I can see no rational basis on which the respondent could continue to find there had been a sexual assault, as described by ZZ. Sir Ciarán Devane’s suggestion that the evidence was not “on its face is compelling that the conclusion of the investigation was a mistake” is unsustainable.7.103 It was possible to reopen the appeal. Instead of reopening the appeal and assessing the strength of the witness evidence, Sir Ciarán Devane rejects the evidence citing only that many months had passed since the event occurred. This is an assumption that the evidence is unreliable. Given that this is the only direct independent evidence, and that reopening the appeal was a possibility, making an assumption, based on the passage of time, that the evidence would not be reliable, is outside the band of reasonable responses of a reasonable employer.7.104 I have set out above, in relation to each relevant matter, my conclusions. I should summarise them here.7.105 Ms Ewart-Biggs believed the claimant placed both hands on ZZ's breasts and rubbed down in a sexual manner. She reached limited conclusions on the remainder of the circumstances about which she considered ZZ's account to be hazy.7.106 She placed reliance on what she saw as a discrepancy in the claimant's account of the timing and fact of dancing but identified nothing else that she considered to be a discrepancy, either in ZZ’s account or the claimant’s account.7.107 I accept that her belief was honest. I accept that the reason for dismissal has been made out and related conduct, as found.7.108 In a limited sense there were grounds to sustain the belief. However, Ms Ewart-Biggs's view of the relevant grounds was unreasonably limited.7.109 There were fundamental difficulties with the investigation. The failings were serious. For the reasons given, this investigation was not one within the band of reasonableness. It was not a reasonable investigation open to reasonable employer. The effect was that relevant evidence was not identified. Even on the evidence available it was apparent that Ms Ewart - Biggs ignored relevant evidence. The failure to conduct a proper investigation, and the reliance on what it was “felt” a witness would see, resulted in the respondent failing to identify evidence that should have been identified by a reasonable investigation. At the time that Ms EwartBiggs formed her belief, a reasonable investigation, being one open to a - 35 - reasonable employer, had not taken place. In particular, she was aware of the importance of corroboration, but did nothing to secure the relevant evidence in circumstances when she was aware that such evidence could be crucial.7.110 It follows that the dismissal was unfair.7.111 I have considered the appeal process. The appeal process did not adequately identify deficiencies in the investigation or the approach of Ms Ewart-Biggs. It did not rectify those difficulties. The appeal process did not render an otherwise unfair dismissal fair.7.112 When an appeal process is completed, it may not be unfair to ignore a request to reopen. However, the circumstances of this case are unusual. Reopening of the appeal was envisaged by the respondent's own policy. It was recognised that where there was fresh compelling evidence, it may be appropriate to reopen. If Ms Marziota’s evidence had been accepted, there is no rational basis for believing that the dismissal would not have been set aside.7.113 The approach taken by Sir Ciarán Devane in refusing to reopen the appeal was unfair. It was clear the claimant had felt constrained by confidentiality. Sir Ciarán Devane did not explore adequately the perceived and actual constraints imposed. There was no proper basis for believing that the witness’s recollection should be doubted. He failed to take into account the respondent’s own failure to actively seek to identify witnesses. The assertion in his letter that the evidence was not on its face compelling is unsustainable.7.114 Moreover, given the nature of the penalty, and the potential effect on the claimant's future employment, rejecting compelling relevant evidence summarily when the respondent own procedure would have allowed the matter to be reopened is not fair. No reasonable employer would have behaved in that way.7.115 Had the dismissal been fair at the dismissal and appeal stages, in the circumstances of this case, refusing to reopen the appeal would have made the appeal process unfair.7.116 For all the reasons I have given, I find that this dismissal is unfair.7.117 There are a number of further points I need to deal with. The claimant has made an application for anonymisation. That has already been considered by EJ Nicolle on 5 February 2020. I have been presented with no new grounds which would cause me to vary his decision. I decline to consider it further.7.118 EJ Nicolle’s decision made it clear that the complainant should remain anonymised during the course of these proceedings. - 36 -7.119 I am conscious that it is necessary to have a remedy hearing. The question of a Polkey deduction and any deduction for contributory fault has been left to the remedy hearing. When considering contributory fault, I will need to decide whether any action of the claimant contributed to his dismissal. I anticipate that will involve deciding whether the claimant committed the alleged sexual assault. As this is a question of fact, it may be appropriate to hear further evidence. It may be necessary to hear from witnesses. The respondent may choose to call ZZ.7.120 Having regard to the fact that there will be a further hearing, I see no reason to interfere with EJ Nicolle's decision at this stage, and I will order that it is continued until the next hearing. It may be considered further following any remedy hearing.7.121 It will be necessary to have a further case management hearing to consider the directions for the remedy hearing. I would invite both parties to write to me with their proposals.
Relevant facts
[28]Following termination of employment, a dispute arose as to whether the claimant should stay in his flat in Rome. I have received limited evidence and I cannot assess the merits of the respective positions. Proceedings were brought by the landlord,5 which resulted in eviction. The respondent also brought proceedings against the claimant. I do not know the detail. The respondents’ proceedings were withdrawn, having secured the claimant's consent to withdrawal (a requirement in Italy), and upon the respondent paying the claimant's costs. It is necessary to consider some detail.[30]Mr Williams states at paragraph 18 On 21 December 2021, the British Council received Employment Judge Hodgson’s judgment (pages 28-64 of the bundle). Members of the Executive Board involved in decision making around this case were very concerned by the conclusion that the original internal investigation into the allegations against Mr Sellers had been inadequate, characterised by serious oversights, unreasonable assumptions, procedural errors and a failure to consider all available and necessary evidence. Although two internal investigations had resulted in the finding that the alleged misconduct had occurred, and both decision makers had an honest belief that it had, due to the flaws in the investigation process the Judge had determined that that belief was unreasonable. This raised a great deal of concern for the organisation.[31]Mr Williams was not involved in the decision, and I treat his evidence with some caution as he has no direct knowledge. I am not satisfied that he can give any relevant evidence on the reason for taking the decision to pursue a further investigation. The respondent has chosen not to call the apparent decision maker, Mr Patel.[32]At paragraph 19 of his statement Mr Williams states - On 15 March 2022, having discussed matters with our external legal advisers, the decision was taken by Sanjay Patel, the British Council’s Chief People Officer, to instruct an external and independent investigator to re-investigate the allegations raised. This decision was taken because Employment Judge Hodgson had found the decision to dismiss was 5 The respondent was not the landlord. - 8 - procedurally unfair and there was concern that the Tribunal may order the British Council to reinstate Mr Sellers and award him damages in circumstances where he may have been guilty of sexually assaulting a member of the British Embassy. The uncertainty left following the judgment raised several concerns for the British Council should the organisation be ordered to re-employ Mr Sellers. Those concerns are set out in some detail below at paragraph 25, sections A to F. Considering those concerns, it was felt that the organisation had no choice but to re- open the investigation with a view to remedying the flaws identified by the Judge to determine whether the correct decision had been made to dismiss Mr Sellers in any event. Had the investigator concluded categorically that there was no evidence of the misconduct, and the allegation of sexual assault could not be upheld, the British Council would have taken steps to consider reinstatement in a suitable role as we would have had evidence with which to address any internal or external concerns raised about Mr Sellers' potential future conduct. However, Mr Sellers would not have been placed back into the Country Director Italy posting as his term of service in that role had already been extended twice beyond the usual fixed term.[33]I am satisfied, on the balance of probability, that had the Mitchell report concluded that the claimant had not sexually touched Ms ZZ, reengagement was considered a possibility. There is no suggestion it would have been considered impracticable. There is no suggestion that there were any concerns about the litigation in Italy being a reason to refuse reinstatement.[34]On 4 May 2022, Mr Patel sent Ms Gemma Ralph an invitation to give evidence. In that email, he explained his rationale for commissioning the Mitchell report. As an update we are awaiting a date for a remedies hearing during which the judge will decide the level of damages the British Council will need to pay the respondent and whether we will be asked to re-employ him. In advance of this hearing we have on advice of our lawyers decided to re- open the investigation to correct some of the perceived inadequacies of the initial investigation identified by the judge. We have appointed an independent external investigator to look into the case. The investigator will re-interview some of the witness and the complainant. We see this as our best chance to avoided damages or an order for re-instatement of the former employee. In this respect I would be grateful if you could consider whether you would be willing to be re-interviewed by the external investigator. I appreciate this involves further time and stress for you but we would really appreciate your help in trying to ensure a fair outcome. If you would like to discuss this further I would be happy to have a call.[35]I find that this statement is in conflict with the evidence of Mr Williams. There is reference to reopening the investigation to correct "perceived inadequacies." Mr Patel states the rationale for the process is "We see this as our best chance to avoided6 damages or an order for reinstatement." It follows that the main purpose of the commissioning the Mitchell report was to avoid paying damages and to resist an application 6 Presumably this is a typo and should read ‘avoid.’ - 9 - for reinstatement. I find it was not requested as part of a genuine attempt to rectify previous errors.[36]I have been given limited disclosure of the documents relevant to the commissioning of the Mitchell report. It is apparent a process existed whereby various barristers’ chambers were approach. It is almost inconceivable that the process did not generate correspondence, but that full correspondence has not been disclosed.[37]The terms of reference sent to Mr Mitchell are dated 14 April 2022. The document was not sent to the claimant at the time. The terms of reference, as disclosed to the claimant shortly before this hearing were redacted. Mr Keen stated the redactions were of irrelevant information. The full terms (albeit with what appear to be names still redacted) were disclosed during this hearing. I have considered the latest less redacted version; I find that there is no justification for the assertion that the redacted information was irrelevant.[38]The respondent's position is that the Mitchell report was requested to rectify the alleged mistakes made in the initial dismissal. However, the terms of reference raise new matters (including an alleged assertion by an individual whose name has been redacted) that female staff "were told to keep themselves away from Mr Sellers at functions where alcohol was served because of this behaviour." It is said this was “well known.” It is asserted that individuals who remain working at the British Council alleged they "had suffered similar treatment" to ”that complained of by ZZ”, but the individual or individuals were unwilling to come forward. These unsupported assertions were not matters which were raised in the original disciplinary. These matters form no part in the original investigation. The claimant could have no idea that such matters would be raised. They are couched in terms which make it clear that the writer of the instructions asserted the unspecified misconduct was to be taken as having occurred. Their inclusion is highly prejudicial. Why new unparticularised assertions of actual misconduct were included in the instructions to Mr Mitchell is unexplained. I find, on the balance of probability, the assertions were included to suggest a pattern of behaviour. They were included in a deliberate attempt to prejudice the ultimate findings. They seriously undermine any suggestion there was a true attempt to address previous deficiencies. The redaction of the information is unjustified and significant. The inclusion of such unsupported new allegations is at odds with the respondent’s assertion that there was a genuine attempt to investigate further.[39]Mr Mitchell contacted various witnesses and undertook various reviews. He was given documentation to consider, albeit the documentation was incomplete. I have no reason to doubt that he produced his report in good faith. The information before him, as acknowledged by Mr Mitchell, was limited. Further, Mr Walker confirmed the timetable was constrained. I - 10 - have no doubt that Mr Mitchell would have sought to put from his mind the irrelevant prejudicial information, but the inclusion of it before him undermines the reliance that the respondent should reasonably have placed on his opinion. If Mr Mitchell dealt with the new allegations expressly in his report, it has not been brought to my attention. I have no reason to doubt Mr Mitchell formed a view based on the information as disclosed to him, and the evidence he had obtained from witness interviews. However, the material before him was limited and distorted. He did not interview he claimant. He did not seek any comments from the claimant. It does not appear he gave weight to the claimant’s written statements or any of his wife. On the basis of the information before him, Mr Mitchell concluded that the claimant had committed the alleged sexual assault.[40]I find there can be no criticism of the claimant for not participating in the Mitchell investigation. Whether he sexually assaulted Ms ZZ was a live issue before this tribunal and was to be determined as part of the remedy hearing. He had engaged with the original investigation and all stages of the appeal. To the extent that the respondent purported to reopen the investigation post dismissal and post judgment, it was outside any procedure. The claimant was no longer an employee. The new investigation was not underpinned by any reinstatement. He had no obligation to cooperate with the further internal investigation, particularly given that the proceedings were ongoing. No reasonable employer would have expected the claimant to participate in a further internal procedure, which formed no part of the respondent’s normal policies, in circumstances where the central issue under consideration was before the tribunal. I find the respondent knew at all times that there was no prospect of Mr Mitchell interviewing the claimant or his wife and knew that the information on which Mr Mitchell could base his opinion would inevitably be incomplete.[41]I noted, in the liability decision at paragraph 7.102 the importance of the statements of Ms Monica Marziota’s and Mr Michele Gerace. I said – 7.102 Ms Marziota’s statement is the only direct independent evidence from a witness who states that she saw the goodbye between ZZ and the claimant. She has given a clear and rational explanation for why she remembered it. She describes why ZZ came to her attention. There is nothing in the statement which would suggest that her memory was unclear. The evidence, on its face, is relevant, clear, and compelling. If that evidence had been accepted by the respondent, I can see no rational basis on which the respondent could continue to find there had been a sexual assault, as described by ZZ. Sir Ciarán Devane’s suggestion that the evidence was not “on its face is compelling that the conclusion of the investigation was a mistake” is unsustainable.[42]Ms Monica Marziota’s statement was countersigned by Mr Michele Gerace, who is her husband. That statement was not sent to Mr Mitchell. - 11 - The omission is significant and not explained, particularly given my judgment emphasised the importance of that evidence.[43]I accept that attempts were made by Mr Mitchell to contact both individuals. I reject Mr Walker’s evidence that all reasonable attempts were made to contact those witnesses. It appears that emails were sent to Ms Marziota’s and Mr Gerace on 5 May 2022, and a further email to Ms Marziota on 6 July 2022. On 12 May 2022, Mr Mitchell did speak with Mr Gerace, briefly. His wife, Ms Marziota, was, literally, giving birth and understandably he could not proceed with the interview. Apart from, possibly, an email on 6 July 2022, there is no evidence that any further attempt was made at contact. Ms Marziota and Mr Gerace potentially provided the only independent evidence which would demonstrate that the alleged conduct of Ms ZZ did not take place. The attempts to contact them were wholly inadequate and seriously limit the reliance that the respondent could reasonably place on any report.[44]If the Mitchell report is relevant at all, it is in deciding to what extent it was rational for the respondent to rely on it when deciding, as a fact, that the claimant had sexually touched Ms ZZ. I will consider this further in due course.[45]The draft report was sent to Mr Walker. Mr Walker raised a number of questions, which I have reviewed. No question raised a substantive issue. It should have been obvious that there were material failures in the report, particularly with regard to contacting the most important witnesses. Further, at no time did Mr Walker question the appropriateness of the respondent’s approach, or the rationale for the investigation. In his evidence, he accepted that he was tasked with deciding whether the claimant had committed the alleged sexual assault. He was unable to say why it was considered appropriate for the matter to be considered by an independent barrister, who had limited access to information, when the issues was before tribunal. It is clear that he gave no consideration to the overall appropriateness of the procedure in the context of continuing litigation or the cogency of the report’s finding when the claimant could not be expected to participate in the process.[46]Mr Walker describes his role as follows 5. I was not involved in the original investigation into the allegation of misconduct against Mr Sellers, the decision to dismiss him or his subsequent appeal against his dismissal. I was asked to review Jack Mitchell's report as an independent internal decision maker and decide whether, based on Jack's findings , I agreed that the allegation raised against Mr Sellers had, on the balance of probabilities, occurred as alleged and whether, in my view, it constituted an act of gross misconduct. - 12 -[47]Mr Walker did consider whether to offer Mr Sellers the opportunity to comment on the findings. He chose not to. He said he relied on advice.7 He offers an explanation at paragraph 7 of his statement 7. I reached this decision because the report was commissioned because the judgment in Mr Sellers' unfair dismissal claim (pages 28-64 of the bundle) had ruled that the decision to dismiss was procedurally unfair and as a result there was concern in the leadership team that the Council might be ordered to re-employ Mr Sellers in circumstances where it was unclear following the judgment whether he was guilty of sexually assaulting a member of the British Embassy. I also understood from my review of the report (paragraph 18, page 225 of the bundle) that Mr Sellers and his wife had declined to be interviewed by Jack Mitchell as part of his investigation, seeking to rely on their previous interviews and I took this to mean that Mr Sellers had nothing further to add on the matter.[48]As to his own findings, he states - 8. Having reviewed and considered Jack Mitchell's revised investigation report and supporting documents in detail I concluded that his findings were supported by the evidence and that the allegation in question amounted to an act of gross misconduct, one that I believed to be a serious example of "unwanted conduct which is intended to, or has the effect of, violating an individual's dignity" under the British Council's Bullying and Harassment Policy (pages 298-300 of the bundle). I recorded the detailed rationale for my decision in a record of decision document dated 20 August 2022 which can be found at pages 785-786 of the bundle.[49]I have considered the “rationale.” Mr Walker states he was satisfied the investigation had been undertaken in a wholly independent manner. He states, “all reasonable efforts have been made to engage witnesses.” He states, “I see no evidence that ZZ had anything to gain.” He relies on certain aspects of the evidence, including the fact that ZZ appeared to be agitated when leaving the party. He states, “None of the witnesses interviewed by JM are able to provide compelling evidence that the alleged assault did not take place or could not have taken place.” He does not explain why he considered it necessary for there to be compelling evidence that the assault did not take place, particularly when Mr Mitchell’s findings were based on the balance of probability. It appears he may have had in mind a higher burden of proof required to believe the claimant. As to his rationale he states – Given this, I have focused my considerations on whether I believe that the alleged assault took place in the manner that it has been articulated by the complainant, ZZ. In doing so, I note the investigator has sought to identify evidence that supports and opposes the allegation raised. He identifies ZZ’s accuracy of recollection of events noting a comment made by PS at 7 Any legal privilege has not been waived. - 13 - the party to a 13-year-old girl; he identifies that ZZ allegation is fortified by her contemporaneously raising the matter with her close friend, the manner in which she raised it by the timing of the communications… and her line manager’s view that a few days later ZZ was genuinely shaken and at a loss to know what to do.[50]Finally, he reaches a view “on the balance of probabilities” that the alleged assault did take place. No part of his rationale questions any deficiencies in the report or the failure to obtain evidence. It also appears to proceed on the assumption that the claimant should be expected to participate in the process.[51]Mr Walker gives no evidence as to what happened thereafter. It is apparent there was a senior leadership team, consisting of approximately 10 people including the chief executive, of which both he and Mr Williams were part. There is no evidence that the matter was considered by that team. It is unclear what happened to the report, who considered it, what further decision was made, or on what basis. No decision maker has been called and the evidence does not establish who else believed the claimant guilty of alleged misconduct or why.[52]I am satisfied that Mr Walker, simply accepted the finding of Mr Mitchell. During the course of his evidence, he conceded that there were difficulties with the report and the potential key evidence had not been considered. He did not consider those obvious deficiencies at the time, despite being tasked to reach his own decision. I am satisfied that had Mr Mitchell said the conduct had not occurred, Mr Walker would have accepted that finding. I am satisfied that he placed reliance wholly on the Mitchell report. It follows that Mr Walker did not hold an independent view that the claimant had committed misconduct. He was prepared to accept an appropriate and proper finding of a proper investigation. There is no suggestion before me that any member of the senior leadership team of the respondent has, independently, formed the view that the claimant committed a sexual assault. The only direct evidence I have is from Mr Walker, and he relied wholly on the report. As I am satisfied that he would have accepted a finding that the claimant did not commit the sexual assault, I am not satisfied that he has formed an intractable view that the claimant committed the misconduct. I have no reason to believe that the respondent’s managers, should it now accept that there are deficiencies in the process, will maintain the view the claimant committed the alleged sexual assault; however, the evidence I have is limited, but I have no doubt that Mr Walker has an open mind.[53]Moreover, having regard to the evidence, particularly of Mr Williams, I note that there are concerns about reinstating the claimant because of the effect that may have an stakeholders and others. However, that reservation is in the context that there is no specific finding that he did not commit the misconduct which could be communicated to the world at large. That was the position before this hearing. - 14 -[54]Following his dismissal, the claimant continued to occupy the flat in Rome. There was a dispute about the continuing provision of accommodation. I have been given limited details of the dispute. The respondent’s action against the claimant was ultimately withdrawn, with his consent. The respondent paid the claimant’s costs. This suggests that the respondent’s action against claimant was not well-founded. However, the respondent has given no detail. It appears the flat was repossessed because of the landlord, who is not the respondent, took action. This tells me nothing about the relationship between the claimant and respondent. There is some suggestion that the claimant delayed returning artwork. However, there is no suggestion at all that he intended to keep it permanently and it was returned to the respondent. The claimant summarises the position in his submissions. The Respondent mentions the apartment in Rome (AW Witness Statement para 29). They are correct in saying that I stayed in the apartment after my dismissal. I stayed because I understood that housing would continue to be provided until the matter went to the Employment Tribunal. The Respondent themselves, in their Counter Schedule of Loss (P 126) confirms this. I received no communication about alternative arrangements or about repatriation and was surprised to be taken to court over this matter. The artworks mentioned in AW Witness Statement are incidental, part of the fixtures and fittings of the apartment. I submit that my behaviour was in good faith in terms of my expectations of my rights. The litigation went through the courts and was settled. The BC requested me to allow them to withdraw and agreed to pay my costs (Apartment Rome document shared during the Remedy Hearing). As far as I was concerned, the situation was resolved amicably. Indeed, the Respondent confirms there are situations where current or serving employees are involved in litigation with the BC (AW Testimony). I submit that this is part of a normal process and does not have to result in any loss of trust or confidence on either side. I accept that this is fair and accurate.[55]The evidence before me demonstrate that reinstatement would be considered based upon the findings of the Mitchell report. There is no suggestion that such consideration would be contingent upon any matter relating to the Italy litigation. There is no evidence to suggest that the Italy litigation was a significant consideration. There is no evidence in support of the contention that the Italy litigation fundamentally damaged mutual trust and confidence, such as to be relevant to any claim of reinstatement of engagement. To the extent Mr Williams asserts that the Italy litigation is important, his evidence is unconvincing, and I do not accept it.[56]The British Council is an international organisation for cultural relations and educational opportunities. It operates internationally. It works in the fields of arts, culture and education. It has a physical presence in over a hundred countries. It has offices in this country, including Manchester and London. The eight regions are each led by regional directors and there are country directors, of which the claimant was one. - 15 -[57]Many appointments are subject to rotation. The claimant expected to remain in post for three years. Appointments are sometimes extended by between one and two years. I do not need to go into the detail. Despite appointments being of limited duration, many, and possibly most, employees at a senior level stay in the organisation for a considerable period. It is common to reapply for further appointments. Where appointments are not immediately secured, individuals may undertake projects within Britain. Sometimes those projects may last for a considerable period. Ultimately, if appointment to a post is not secured, there may be a process of entering a redundancy pool which may last many months. It follows that the process of displacement and reapplication is normal. This organisation is peculiarly well equipped, to deal with displaced employees and to identify, and supply, alternative, and suitable roles. The process of periodic displacement is the model used. Given the size of the organisation, individuals may be placed in different countries, different departments, and different offices. They may work with individuals, including managers, with whom they have not worked previously.[58]Mr Williams gave evidence of an ongoing restructuring process. The process includes a reduction in funds and a reorganisation. I accept the claimant’s evidence that the fact that direct funding is being reduced does not necessarily mean that all sources of funding are reduced, there may be funding available for specific processes supplied by stakeholders. I do not need to consider the detail. I do accept that the ongoing process has led to consideration of redundancy. Some have volunteered for redundancy. I am not satisfied that all redundancy programmes have closed, albeit I do not need to consider the detail of this at this stage. The reality is that the picture is developing. It is unclear how many individuals will seek to remain. It is unclear how many will secure employment. The respondent suggested that there are more individuals chasing positions than there are positions which exist. The reality is that this is speculation, and such a simple assessment may not be reliable.[59]The claimant occupied the position of country director Italy. That position will become vacant. It is anticipated it will be advertised in or around or January 2023. It is unclear when it will be filled, the best evidence I have suggests that it may be filled sometime next year.[60]The last assessment the claimant received was that he “exceeded expectations.” It is unclear whether he would have been reappointed as a country director Italy. His tenure had expired, and it may not have been extended. There is at least a possibility that he would have applied for and accepted another role. I do not need to consider in detail what jobs are currently available. It is common ground that there are positions available which would be suitable for the claimant and to which he could be appointed. There is no suggestion that they will not remain available in - 16 - the foreseeable future during the period any re-engagement will take effect. Mr Williams speculates about whether the claimant would succeed in a competitive appointment. However, I do not consider that to be relevant to my decision at this stage.[61]As regards general changes, Mr Williams says the following - 48. In summary, significant changes have been made to the Global Network operating model as part of the ongoing transformation process and these include:• an increase in Locally Appointed Country Directors rather than International Assignees from UK;• an increase in Country Director roles with remote delivery responsibilities for other countries;• a removal of shared Country Director / Teaching Centre Manager roles; and• more Country Directors with the need for a specialised sector skill in Arts and/or Education.[62]I do not need to consider all the roles Mr Williams has identified. It is clear that there are numerous roles for which the claimant may be suitable. For some of those roles he may need to be trained, but that is not itself necessarily a barrier and it reflects the reality of rotation. In any event, that there are roles to which he would be suitable. At paragraph 52 Mr William states – 52. Noting Mr Sellers’ background with the British Council in Exams Management and as a Country Director, I would anticipate that of the 11 advertised roles, Mr Sellers' skills and experience mean he might be a suitable candidate for four of these roles, namely, Country Director Sri Lanka (the profile for which is found at pages 796-799 of the bundle), Country Director Brazil (the profile for which is found at pages 777-780 of the bundle), Country Director Jordan & Cluster Lead Levant (the profile for which is found at pages 770-773 of the bundle) and Regional Head South Asia and East Asia (the profile for which is found at pages 774-776 of the bundle), had he not been dismissed for gross misconduct.
The law
[63]It is respondent’s position that if the claimant is re-engaged, or reinstated, this will add one further person to a process of reorganisation, ultimately, that may mean that another person is unable to find employment. That may be a theoretical possibility. It is not a certainty, and I am not satisfied that it is decisive. Law[64]Section 116 Employment Rights Act 1996 provides.(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, - 17 - (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.(3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.(4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.(5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re- engagement.(6) Subsection (5) does not apply where the employer shows— (a) that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement, or (b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee's work to be done except by a permanent replacement.[65]An order for reinstatement or re-engagement cannot be refused merely because it is inexpedient (see Qualcast (Wolverhampton) Ltd v Ross [1979] IRLR 98, [1979] ICR 386, EAT. The fact that the employer considers another person preferable for an available alternative post does not mean that re-engagement is not practicable (see Davies v D L Insurance Services Ltd [2020] IRLR 490, EAT).[66]The availability of possible jobs is to be assessed as at the date that any order would take effect: Great Ormond Street Hospital v Patel UKEAT/0085/07.[67]The Court of Appeal in Port of London Authority v Payne [1994] IRLR 9 held that the tribunal must make a determination on the evidence in relation to practicability at the first stage. This is provisional. It is at the - 18 - second stage that the final determination has to be made, with the burden of proof then clearly on the employer. The 'provisional' nature of practicability in the initial order was accepted and emphasised by the Supreme Court in McBride v Scottish Police Authority [2016] UKSC 27.[68]An order may not be practicable if there remains a continuing breakdown of trust and confidence between the parties: Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680, EAT. In in this case the employers remained convinced of the substantive allegations of misconduct. In such a case, what the tribunal must do is to determine whether this employer has genuinely and reasonably lost confidence. The tribunal should not substitute its own view as to that misconduct United Lincolnshire Hospitals NHS Foundation Trust v Farren UKEAT/0198/16. In that case the employment tribunal had accepted that the employee had administered drugs in breach of the trust's policy but considered that the employee had long service, and in the view of the tribunal, the employee could be trusted to act properly in an environment other than an accident and emergency unit, given her experience, record and professional commitment. The tribunal was not permitted to substitute its own view about the trust to be placed in the employee. The correct approach was to ask whether this employer genuinely believed that the claimant had been dishonest, and whether that belief had a rational basis.
Conclusions
[69]In Kelly v PGA European Tour [2021] EWCA Civ 559 the Court of Appeal confirmed the Farren approach.[70]The mere fact that the initial dismissal was for misconduct does not make reinstatement impracticable even if some managers still believe in guilt (especially in a large organisation) see London Borough of Hammersmith & Fulham v Keable [2022] IRLR 4, EAT.[71]In Boots Co plc v Lees-Collier [1986] IRLR 485, the EAT held that the test for contributory fault under subsections (1)(c), (3)(c) is the same as the test for contributory fault under ERA 1996 s 123(6) in that case, the tribunal had accepted that on the facts there was no argument for a reduction under s 123(6) and so it followed that it would not be unjust under sub-s (1)(c) above to order reinstatement.[72]A tribunal should make clear if contributory fault will be considered in the liability or the remedy hearing (see Iggesund Converters Ltd v Lewis [1984] IRLR 431.[73]If a tribunal considers on the facts before it that the employee's acts caused or contributed to the dismissal it must make the reduction even if the parties have not expressly raised the question of contributory fault - 19 - (see, e.g., Swallow Security Services Ltd v Millicent [2009] All ER (D) 299 (Mar)).[74]It is important to consider whether the claimant's actions caused or contributed to the dismissal itself, not to the unfairness of that dismissal (see British Gas Trading Ltd v Price UKEAT/0326/15 (22 March 2016, unreported).[75]It is necessary to determine, as a fact, whether conduct, which may be capable of contributing, did, in fact, occur. The employee's conduct must be to some degree blameworthy for a reduction in compensation to be made and by analogy to be relevant to the question of reinstatement or engagement.[76]Langstaff P in Steen v ASP Packaging Ltd [2014] ICR 56, EAT advised tribunals to address four questions—(1) what was the conduct in question? (2) was it blameworthy? (3) (in relation to the compensatory award) did it cause or contribute to the dismissal? (4) to what extent should the award be reduced?[77]Langstaff P further clarified in Rawson v Robert Norman Associates Ltd UKEAT/0199/13 (28 January 2014, unreported) that, in relation to the employee’s alleged contributory conduct, the test here is whether it actually occurred, not the more general unfair dismissal test of whether the employer reasonably believed it happened. Conclusions[78]For both reinstatement and re-engagement, I am required to consider whether the claimant contributed to his dismissal and if so, whether it would be just to order either reinstatement or re-engagement.[79]The tribunal should adopt the same approach as required by section 123(6). I have set out the main principles above. The fact a party does not rely on contributory fault does not absolve the tribunal of its obligation to consider it.[80]There have been unusual developments in this case. The respondent initially pleaded that the claimant was dismissed because of the alleged sexual assault. It alleged his conduct contributed to the dismissal. I have no doubt the conduct referred to is the alleged sexual assault. The respondent has ’withdrawn’ its reliance on the allegation of contributory fault for the purposes of section 123(6). The respondent failed to confirm its position in relation to section 116, and hence the order for further submissions.[81]After the hearing, the respondent sought to amend by deleting paragraph 15 of the grounds of resistance. I have allowed that amendment. This - 20 - simply removes the positive assertion there was contributory fault, but it does not change the factual basis of the defence or concede that the conduct did not occur. The final submission states, “The Respondent does not admit that the misconduct did not occur.” The original pleaded case stated it did occur, and that has not been withdrawn.[82]The respondent failed to give any explanation for the withdrawal of its positive case that the claimant contributed to the dismissal. Despite specific enquiry that was not clarified in the hearing. I sought clarification in the order for further submissions.[83]Withdrawing a positive case of contributory fault does not relieve the tribunal of its duty to consider contributory fault. In circumstances where a respondent accepts that conduct initially relied on did not occur, the tribunal may, in appropriate circumstances, be able to rely upon that concession. The result would be there would be no finding of contributory fault.[84]In circumstances where the respondent asserts that the conduct did occur, it may still be necessary for the tribunal to consider whether it finds the conduct did occur, and if so, whether it contributed to dismissal. A withdrawal of a positive case may be persuasive, but it is not decisive, particularly if the reason for the withdrawal is unclear.[85]In this case the respondent does not concede the conduct did not occur, and fails to explain why it now chooses to advance no positive case of contribution, whilst simultaneously asserting that the respondent maintained a rational belief that it did occur.[86]The approach to contributory fault is the same for section 123 and section 116. It follows that the respondent’s withdrawal of reliance on contributory fault for the purpose of section 123 could be relevant to consideration of contributory fault pursuant to section 116.[87]It remains the respondent’s evidential position that the alleged sexual assault occurred. That is the effect of Mr Walker’s evidence. His consideration was not in the context of whether he believed the matter for the purposes of dismissal, but whether he believed the conduct occurred for the purposes of deciding whether there was a loss of mutual trust and confidence. He decided, as a fact, that the sexual assault had occurred. The fact that the conduct is alleged to have occurred is consistent with the respondent’s pleaded case.[88]It is necessary to go back to first principles. In particular, I have regard to Langstaff P in Steen. First, what was the conduct in question? There can be no doubt about this. It is the alleged sexual touching at the party on 16 December 2018, which I refer to generally as the alleged sexual assault or - 21 - the alleged sexual touching. In order to consider whether any conduct contributed to dismissal, it is first necessary to consider whether it happened at all.[89]Contributory fault was not decided at the liability hearing. At the liability hearing the parties were told the question of contributory fault would be reserved to the remedy hearing. They had an opportunity to, and should have, filed all relevant evidence concerning contributory fault at the liability hearing. When contribution was reserved for the remedy hearing, the respondent was invited to consider what further evidence, if any should be produced. This was a second opportunity for the respondent to produce that evidence.[90]The respondent contacted Ms ZZ for the purposes of the Mitchell report. It was suggested to me that it would be inappropriate to call her to give evidence, as she may not wish to give evidence, and she may still be in Italy. If there has been relevant correspondence, it has not been brought to my attention. I do not find that submission compelling. It was open to the respondent, at all times, to call Ms ZZ, and any other evidence it considered appropriate, in order to establish the conduct which it relied on in its pleaded case.[91]I reject the respondent’s submission that the claimant has not given relevant evidence. His evidence has been consistent and to the effect he did not commit the sexual assault.[92]I have seen evidence in the form of various reports and statements. In particular I have regard to the letter from Ms Monica Marziota and Mr Michele Gerace, albeit I am conscious that they have not been called to give evidence.[93]During the hearing, Mr Keen indicated that the respondent did not pursue an allegation that the claimant had committed the sexual assault because it did not have sufficient evidence to establish the fact, albeit the respondent maintained that it had sufficient evidence to sustain a belief that the conduct occurred. I do not accept that the respondent could not produce evidence in support of its pleaded case. At the very least it could have sought a statement from Ms ZZ, even if she were not called.[94]Throughout the remedy hearing, I made it plain that the issue of contributory fault remained live and may need to be decided by the tribunal, regardless of the position adopted by the parties. The respondent had an opportunity to cross examine the claimant further, if it had chosen to do so. Instead, the respondent adopted the position the contributory fault was irrelevant, and that the tribunal must not make findings, and to make findings would be an error of law. That position was expressly not accepted by the tribunal. It follows that I am satisfied that the respondent had an opportunity to produce evidence in support of its - 22 - pleaded position. It had an opportunity to cross examine the claimant. It had not opportunity to advance arguments on whether there was contributory fault. Instead, it chose to abandon reliance on contributory fault for the purpose of section 123, and as the approach to contributory fault under section 116 is the same, by implication for that purpose also. The reason advance was that the respondent could produce insufficient evidence to establish the alleged conduct. The respondent is entitled to make that litigation choice.[95]None of that removes my obligation to consider contributory fault. The first question is whether Mr Sellers committed the sexual assault on which the respondent relied for dismissal.[96]I have considered all of the evidence carefully. I have regard to my liability decision and in particular to the discrepancies I found in Ms ZZ’s accounts.[97]The claimant’s evidence has been consistent throughout. Ms ZZ’s position has been inconsistent. I considered those inconsistences in the liability judgment. She is inconsistent as to whether she said goodbye to the claimant or his wife first. I accepted the claimant’s evidence. Ms ZZ said goodbye to his wife first. To the extent Ms ZZ showed distress, I accept on the balance of probabilities, that she was distressed before saying goodbye to the claimant. Therefore, there is no rational basis for me to attribute her distress to any action of the claimant.[98]Ms ZZ’s statements developed as to the exact nature of the sexual touching. It appears a further account has now been given to Mr Mitchell. This would suggest that the sexual touching occurred over a period of up to ten seconds. This alleged assault occurred in a relatively small flat in a crowded party. Ten seconds is a significant amount of time. It is inconceivable that such inappropriate touching would not be observed by anybody present, provided they were paying a reasonable amount of attention. It appears to be Ms ZZ’s position, both in the statements she gave to the respondent and the statement she gave to Mr Mitchell, that she believed the claimant’s actions would not be observed. That in my view is inconsistent with any description she gave of the touching. It would appear that her account became more graphic and developed before Mr Mitchell. I can see no rational explanation given by Ms ZZ as to why she believed the alleged sexual touching would not have been observed. Ms ZZ’s accounts fall short of suggesting that she was so isolated with the claimant that there were no observers. She appears to accept people were present. It appears that her evidence as to who was present is poor. I note that during the course of the respondent’s initial investigation, her account was described as hazy. - 23 -[99]In the circumstances, I prefer claimant’s evidence, which is the effect that many people were present who would have been in a position to see the alleged sexual assault.[100]I have no doubt that the statements of Ms Monica Marziota and Mr Michele Gerace are important. If believed, their statements are compelling, and possibly conclusive, evidence in favour of the claimant’s account. I have a clear and cogent letter. The respondent failed to interview either witness during the disciplinary process. Mr Mitchell failed to interview either witness. I am conscious that neither have been called. I am also satisfied that in no sense whatsoever have they sought to avoid answering questions. Mr Mitchell was able to speak to Mr Gerace. The fact that his wife was, at that time, giving birth, explains completely why the interview did not proceed. I reject the evidence that every effort was made to contact them. I find their statements are consistent with, and corroborate, the claimant’s account. There is no good reason to give their statements less weight than the written statements of Ms ZZ.[101]I found the claimant to be consistent in his evidence.[102]To the extent that I have any account from Ms ZZ, there are obvious inconsistencies, her recollection appears to be hazy, her account developed and varied, her assertion that she believes no one would have seen the assault is, absent any further explanation, unexplained and unlikely.[103]During the disciplinary proceedings, Ms ZZ indicated that her initial text to a friend had been deleted. It appears that her position may have changed when the Mitchell report was commissioned. I have received limited evidence on the point. I accept the claimant submissions on this point. It appears that, when Mr Mitchell was considering his report he corresponded with Ms ZZ. In her email to Mr Mitchell of 14 July 2022 she stated, “I found a screenshot of the conversation which I will send separately from my mobile.” The next sentence is redacted completely; I do not know why. Her email states she had changed her mobile phone and had no texts before 2020. Why she now had screenshots of texts that she claimed to have deleted before the initial interviews is not explained. The email is difficult to follow, as large parts are redacted. The redactions appear to go well beyond simple redaction of names. The email refers to the recipient of the alleged contemporaneous texts and states, “I asked him for screenshots some time ago and he said he didn’t have any.” It follows that the screenshots do not appear to have come from the estranged friend. It would follow that the screenshots may have been of the claimant’s own phone, but this is inconsistent with her original position that the text messages were not available, as she deleted them when she fell out with her friend. It may be that she had the screenshots all along, but if she did, it appears she withheld them, and misled the original investigation. - 24 -[104]It is not clear to me if the screenshots were sent to either the respondent or Mr Mitchell. If they were sent it is not clear if they were considered. They may have been relevant. At the very least, it may have been possible to examine their properties and ascertain when the screenshots were captured. This may have resolved whether Ms ZZ had misled the original investigation.[105]It follows that how Ms ZZ came to have screenshots of a conversation she claimed to have deleted is unclear. It is possible there is an innocent explanation. However, it is possible that this is clear evidence that she has deliberately misled. Further, the content may have been relevant, but it has not been produced to the tribunal.[106]I have to considered all of the evidence. It is regrettable that I have not heard from Ms ZZ. Had I heard from her, she may have been able to give satisfactory evidence explaining the apparent difficulties, discrepancies, haziness, and possible withholding of documentation. I must decide the matter on the evidence before me. I accept, on the balance of probability, the claimant’s evidence. I find the alleged sexual assault did not occur.[107]As I found the conduct did not occur, I find the claimant did not contribute to his dismissal.[108]As to reinstatement, the respondent relies, first, on the fact that the Italy post is currently filled and second, the claimant had reached the end of his tenure and would have been removed in any event. It is clear that the post will be advertised around January 2023 and will be filled sometime next year. It will become available but is not currently vacant.[109]The respondent’s submissions do not, specifically, address the operation of section 116 (5) and (6). The claimant accepts that it was necessary for the Italy role to be filled. In this context, a permanent replacement refers to a fixed term appointment. The post will become vacant again as noted. It is also unclear to me if the replacement was engaged “after a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged.” It is clear that there was an appointment to his role, albeit the term of that replacement appointment is coming to an end.[110]I am persuaded that the post of country director in Italy will become available, albeit it is not immediately available.[111]I am persuaded that it is not appropriate to order reinstatement to the specific role. In exercising my discretion, I note that the claimant had reached the end of his tenure and was due to reapply, competitively, for a - 25 - new role. In those circumstances, it makes little sense for me to order reinstatement into role which he would inevitably have left.[112]The respondent alleges it is not practicable to re-engage. Its submissions on this point are limited. I must consider whether the order is capable of being carried into effect with success. Practicability must be considered at the date the order would take effect. The parties have not advanced the case on the basis that there will be a material change to the current position in the near future. If the order is made now, it will take effect between now and before the end of October, at the very latest.[113]The respondent alleges there has been a loss of trust and confidence, which is based on a rational belief that the claimant committed the sexual assault. It also relies on his failure to cooperate in leaving the Italy flat. I will deal with this below. The remainder of the submission states this: 7 (b) Secondly, it would result in the Respondent being further overstaffed, other people being made redundant and a disruption of the redundancy processes that were already underway.[114]There are further points relied on as set out in paragraphs 21 – 24 of the respondent’s submissions; they can be summarised as follows: there has been a reduction in the number of roles, which has led to potential redundancies and employees seeking new role; it is alleged there will be more people seeking roles than there are roles available; engaging the claimant would add to “over staffing problems;” re-engaging the claimant would require alteration of the redundancy programme, as others may be bumped, and that burden is too high; an employer is not required to find a place for an employee irrespective of whether there are vacancies; it would be artificial to re-engage the claimant and place him in the pool for redundancy; and the redundancy process should not be trumped. I should deal with those matters.[116]An order shall not be refused because it is inexpedient. The fact that the employer considers another person preferable for an available post is not relevant. I accept there may be an ongoing programme of restructuring and redundancy. However, the position is far from clear. I do not accept there is clear evidence that there will be more people seeking appointments than there are jobs available. There is an ongoing programme of voluntary redundancy, and the outcome is unpredictable. The respondent’s assertion appears to be that other individuals, who may face redundancy in any event, may face more competition should the claimant be re-engaged. This argument is one of expediency.[117]There are jobs, as confirmed by Mr Williams, which are suitable for claimant, and to which he could be appointed immediately. The fact that the respondent may prefer to appoint someone else, is not itself conclusive. Moreover, this respondent is in a peculiarly strong position to - 26 - accommodate the movement and repositioning of displaced employees to include giving specific assignments. I am not satisfied that the respondent has explored the possibility of the claimant being re-engaged into a specific position working on a project, as he may have envisaged would be a possibility when his tenure as a country director concluded. I am not satisfied that undue burden is placed on the respondent by re-engaging the claimant. It is clear that there are roles to which he could now be assigned.[118]The second point relied on is loss of mutual trust and confidence. I accept it is not for me to substitute my views to whether there should be a loss of mutual trust and confidence. My finding the claimant did not commit the sexual assault does not displace any belief held by the respondent’s relevant employees that the claimant committed misconduct. Equally, it is for the respondent to show evidence demonstrating who held what belief and why. I should not assume a belief is held.[119]If there is a belief that the claimant sexually assaulted Ms ZZ, I must consider whether the employer holds that belief on genuine and rational grounds. Much of the case law focuses on the rationality of grounds. However, the first question is whether the belief is held at all, and if so, by whom.[120]The case law recognises that the size of the employer may be relevant (see Keable). In a large organisation, there may be multiple worksites. There may be significant insulation between the re-engaged employee, and any individual who was previously involved in the dismissal or any subsequent litigation.[121]I have heard from two employees. Mr Williams was not involved in the process. He was part of the senior leadership team, which was the body which would have considered reinstatement, had Mr Mitchell come to a different conclusion. I am far from satisfied that he holds any firm or strong view that the claimant committed misconduct. To the extent that he has formed any view, he has relied on the conclusions of Mr Mitchell, and on the assumption that they were proper findings based upon a fair investigation which rectified, in some manner the previous faults. I have no doubt that he was willing at all times, and remains willing, to accept the claimant is not guilty of misconduct, should there be appropriate grounds for finding that.[122]Mr Walker, prior to receiving Mr Mitchell’s report, had not formed any view that the claimant was guilty of misconduct. He was prepared to accept the findings of the Mitchell report. He assumed that the report was a fair and proper process which adequately addressed the evidence; he had no specific independent view himself. For the reasons I have given, his review of the documentation was flawed. I accept that he believed that - 27 - the process was appropriate, and the report itself fair and unbiased. However, I am not satisfied that he reached that conclusion by applying his own mind to the matter. Instead, he relied on the assumed fairness and appropriateness of the process. His reliance on the assumed fairness of the process limited his critical analysis. I have no doubt that before me, during cross-examination, he perceived serious flaws in the process. Whilst I have noted that Mr Walker did not, at the time, adequately apply his mind to considering whether it was rational to rely on Mr Mitchell’s report, I have no doubt that Mr Walker is a fair-minded and thoughtful individual who is undoubtedly capable of reassessment at any time.[123]There are numerous senior managers. Save for Mr Williams and Mr Walker, I have no proper evidence as to the views of the numerous senior managers. It is clear that had the Mitchell report found in favour of the claimant, the senior managers would have considered reinstatement. There is no rational basis for believing that they would not have reinstated the claimant. If anything is to be inferred from this, it is that they had open minds, and I have no reason to believe that their minds are now closed. That said, I have noted the difficulty in Mr Patel’s position and his seeming wish to avoid reinstatement. I have noted that his stated objectives undermine the value of the report. However, it cannot be assumed that the respondent does not wish to reinstate the claimant because there is a belief that he committed the misconduct. That reluctance may be simply a matter of expediency. I am not satisfied that I have heard from the relevant decision-makers, and Mr Walker has been unable to assist me with this. It follows that I am not satisfied that all or the majority of the relevant senior managers have formed the view that the claimant committed the misconduct.[124]If I were wrong, and obdurate views have been formed, I would need to consider whether the views are genuinely held based on rational grounds. Those two matters may be connected.[125]As to rationality, the respondent’s position is simple. It accepts that the original investigation was flawed and inadequate and it could not be relied on to found the belief that the claimant committed the sexual assault. 8 The respondent alleges that the inadequacies of the original investigation could be rectified by a further internal investigation, having rectified those errors, a decision could be made, in some manner, independently and on which the respondent could legitimately rely. It alleges the Mitchell report achieved this. 8 Albeit Mr Williams appears to place reliance on the first investigation when he states “two internal investigations had resulted in the finding that the alleged misconduct had occurred, and both decision makers had an honest belief…” - 28 -[126]In submissions, the respondent confirmed that the Mitchell report was not a disciplinary process. The claimant was no longer an employee. He was not obliged to take part in the Mitchell investigation.[127]As the Mitchell report was no part of the disciplinary process, the respondent says it was not subject to the ACAS code, and it was not part of the respondent’s own HR procedure. In no sense whatsoever could it be seen as a rehearing of the dismissal case. That process had been exhausted.[128]The commissioning of the Mitchell does not demonstrate that the respondent did not believe he had committed the misconduct, but it does demonstrate the respondent accepted that it was not rational or reasonable or appropriate to maintain a belief based on a fundamentally flawed investigation.[129]The Mitchell report may be understood as the respondent’s attempt to undertake an investigation which did not have flaws. In principle, it is laudable that the respondent was prepared to reconsider the matter. I cannot wholly discount the possibility that an internal investigation, even at the stage when this was undertaken, could not found grounds for a rational belief in the misconduct. However, in his case, the exercise was fraught with difficulty.[130]It is appropriate to stand back and consider what is necessary to have a fair investigation which could lead to a reliable finding of fact. Relevant considerations may include the following: the investigator should be competent and independent; the person accused must be able to participate fully; the investigator should have access to all relevant evidence; there should be a reasonable expectation that all relevant witnesses should participate; all relevant evidence should be identified; and a rational decision should be reached.[131]I have no doubt that Mr Mitchell is a competent barrister and his is transparently independent, albeit I do have concerns that the respondent sought to prejudice him by supplying irrelevant prejudicial information.[132]Any fair process must allow full and proper participation from the person who is accused. That did not happen. The claimant was not given full details of the process. He was not told of the prejudicial information included in the terms of reference. He was not interviewed. No specific written questions were asked of him. He was not asked to review the report. It is no answer for the respondent to say that the claimant could have participated if he had chosen to. That ignores reality of the situation. He was involved in these proceedings. There had been a liability judgment. The question of contributory fault was a live matter before the tribunal. It would have been extraordinary if he had cooperated with some - 29 - form of ad hoc internal procedure in those circumstances. No reasonable employer could have expected him to participate. No reasonable independent assessor could have believed that there was any possibility of hearing from the claimant. There can be no criticism of the claimant for failing to participate in the Mitchell investigation.[133]It follows there could be no rational reasonable belief that the claimant would participate in the process. Inevitably, the exclusion of the claimant would lead to a distorted process whereby the claimant’s position was not taken into account.[134]Mr Mitchell did not have access to all the relevant evidence. There was a serious failure to identify and obtain the relevant evidence. The attempts to interview Ms Marziota and Mr Michele Gerace were inadequate. This was compounded by the failure to put before Mr Mitchell their statement. No proper explanation has been given for this failure. I should note that this is not a criticism of the report itself. I have not heard from Mr Mitchell and it may be that there are reasons why those individuals were not interviewed, which have not been brought to my attention. The appropriate question is whether the respondent’s reliance no the report was rational.[135]It is also clear that other evidence was not obtained or was ignored, particularly the contemporaneous evidence of Ms ZZ. I have indicated the difficulties with her evidence, not least with the email which demonstrates that she may have actively misled the original investigation.[136]There are proper grounds to doubt Mr Mitchell’s ultimate conclusion. Viewed one way, it may be arguable that he came to an appropriate conclusion based on the material before him. However, this ignores the fact that the material on which he based his conclusion was seriously limited and inadequate. It was rational for the respondent to ask whether it was appropriate to base a belief on an opinion expressed in a report which was based on a limited investigation. As well as the other difficulties I have described, it was clear the Mitchell report suffered from a systemic bias, as the claimant’s evidence could never be properly considered. In that sense it was inevitable that the second investigation would be even more problematic and flawed than the first. When Mr Walker, essentially uncritically, relied on the report, he failed to observe that it was more flawed than the first, and his reliance on it was even more irrational than reliance on the first investigation.[137]Relying on the report shows serious irrationality. The rationale, as advanced, is that it was inappropriate to rely upon a flawed initial investigation, but it was appropriate to rely on the Mitchell report because it was underpinned by a proper investigation. Even on a cursory consideration, that argument is unsustainable. It relies on an assertion - 30 - that the further investigation avoided the pitfalls of the first investigation. It did not. Further, the claimant was wholly excluded from the process, which sought to introduce new and unsubstantiated allegations. He could not be expected to participate. Relevant evidence was not obtained. There were obviously inconsistencies in Ms ZZ’s account. Her apparent failure to disclose information to the original investigation was not addressed. The Mitchell report did not remedy the failures of the original investigation. Instead, it created an artificial situation which wholly excluded the claimant. It is irrational to rely on such investigation. It follows that I do not accept the respondent had a genuine belief based on rational grounds.[138]I do not accept the respondent has genuinely and reasonably lost confidence in the claimant.[139]In summary, I find it is practicable to re-engage the claimant. It is practicable for the respondent to comply with the order. The claimant did not cause or contribute to the dismissal. I find that he must be reengaged. Further developments[140]On 8 September 2022,9 whilst I was in chambers, I received an email from the respondent indicating that it had not had an opportunity to address benefits which may be due under an order for reinstatement or reengagement. During the hearing, I indicated I would not consider the basic award or the compensatory award. However, the matter before the tribunal was the question of reinstatement/re-engagement. That inevitably includes consideration of the order. At no time did I indicate that the parties should not consider the contents of the order. I specifically raised with the parties on the first day that the content of the order needed to be addressed. I noted it was a matter that should have been considered previously. If the respondent has not addressed the relevant questions, that is the respondent’s failure. I am not convinced that it prevents an order for re-engagement being made, albeit the order may need to be refined to consider what benefits are properly owed. It would be unfortunate if the possibility of re-engagement would be limited because of the respondent’s failure.[141]The parties may apply for further directions to resolve any point of detail; however, this should not prevent claimant being re-engaged at this stage. 9 Date amended under the slip rule (rule 69 Employment Tribunals Rules of Procedure 2013). - 31 - EMPLOYMENT TRIBUNALS Claimant Respondent Mr P Sellers v The British Council Heard at: London Central On: 20 and 21 September December 20221 Before: Employment Judge G Hodgson Representation For the Claimant: in person For the Respondent: Mr S Keen, counsel.
The Facts
[1]Any consideration of remedy pursuant to section 117 Employment Rights Act 1996 is stayed.a. The stay will continue until 20 June 2023.b. The parties must write to the tribunal no later than 16:00, 14 June 2023 confirming whether the order should be continued or lifted.c. Either party may apply at any time to lift the stay, and request an order pursuant to section 117. Section 115 Employment Rights Act 1996[2]Further consideration of any order pursuant to section 115 Employment Rights Act 1996 is not stayed. 1 Date amended pursuant to the slip rule on 10 May 2023 with the consent of the parties. - 1 -[3]The claimant must on or before 16:00, 6 January 2023 serve on the respondent an updated schedule of any sums he believes owing and he should give full disclosure of, and account for, all sums which may reduce the employer’s liability pursuant to section 115(3) Employment Rights Act 1996.[4]If the respondent has questions or matters on which it requires clarification it should serve those questions on the claimant on or before on or before 16:00, 20 January 2023.[5]The claimant should provide answers to those questions on or before on or before 16:00, 3 February 2023.[6]The respondent must serve a counter schedule on or before 16:00, 17 February 2023. The respondent should give full disclosure of relevant documents.[7]If the calculation of any sum remains in issue both parties must serve statements, schedules, skeleton arguments, and documents in support by 16:00, 3 March 2022.[8]If a party fails to serve witness evidence in accordance with this order, that party will not be permitted to rely on any witness evidence at any future remedy hearing, without permission of the tribunal.[9]The respondent shall be responsible for producing a pdf bundle of documents that are relevant to the resumed hearing. It shall be served on the claimant not later than seven day before any future remedy or reconsideration hearing.[10]There will be a further remedy hearing which will consider any amendments, additions, or variation of the section 115 order (“the further hearing”). For the removal of doubt, that hearing will proceed as a continuation of the remedy hearing and to the extent that that is impermissible, it will proceed as a reconsideration hearing either pursuant to the claimant’s application for a hearing, or of the tribunal’s own volition. To the extent it is necessary to explain the reason for a reconsideration hearing, it is set out in the reasons below.[11]A further hearing to consider the section 115 order will not be listed at this stage for the reasons set out below. Both parties must on or before 16:00, 24 February 2022 write to tribunal and confirm the status of the EAT proceedings, and in particular whether any hearing has been expedited. Thereafter, I will give further consideration to whether the hearing should be listed prior to the consideration of the current appeal. Anonymisation - 2 -[12]On or before 16:00, 3 February 2023 an party that wishes to continue or discharge he anonymity order relating to Ms ZZ must send an application to the tribunal.[13]On or before 16:00, 17 February 2023 the parties must file draft directions enabling the tribunal for further consider the anonymity of Ms ZZ.
Introduction
[14]This matter came before me on 20 December 2022 to consider the matters detailed in my order of 14 November 2022 being:a. The respondent’s application for a stay.b. Any remedy matter that has not been agreed.[15]In addition, I noted the claimant had made an application of 17 October 2022 to continue the remedy hearing, pursuant to the rule 115 order following the September 2022 hearing.[16]It is necessary to summarise the background.[17]By a judgment sent to the parties on 22 December 2021, following a hearing in November 2021, I determined that the claimant had been unfairly dismissed. It was not possible to consider remedy at that hearing, albeit the parties should have prepared evidence on remedy.[18]I issued directions on 3 August 2022, which provided for the exchange of witness statement, the provision of schedules of loss, and the preparation of a complete paginated bundle. The order did not limit what matters would be considered during remedy. The parties were expected to file all relevant evidence. This was a further opportunity to file appropriate evidence to deal with remedy.[19]At the remedy hearing, both parties relied on witness evidence and filed schedules of loss. Neither party’s statements dealt with financial loss adequately.[20]The remedy hearing came before me on 5 September 2022. At the liability hearing, I had reserved to the remedy hearing any question of contributory fault and any Polkey reduction.[21]The claimant confirmed that he wished to be reinstated or re-engaged, I made it clear, on the first day, that the parties should give consideration to the content and wording of any order which may be made pursuant to section 115 Employment Rights Act 1996. The need to deal with all - 3 - matters relevant to an order for re-engagement/reinstatements was raised several times during the hearing.[22]On 8 September 2022, after the hearing, when I was in chambers, the respondent sent an email. I should note the email alleged the tribunal confirmed no issue of quantum was to be determined at the hearing. However, I do not accept that assertion, as all matters relevant to reengagement were in issue and both parties had filed schedules of loss. I do accept that future loss was not to be considered. When considering this decision, I have kept in mind that the possibility the respondent misunderstood the position.[23]As to the respondent's proposed approach to the practicability of reinstatement, and the subsequent orders, the email of 8 September 2022, in so far as it is material, stated the following: … The Respondent submits that the Tribunal cannot fairly come to a final conclusion on reinstatement or re-engagement on the terms of the order that the Claimant is now proposing without holding a further hearing. The only way of dealing with this matter fairly is to proceed to determine the issue of the practicability of re-employment as a preliminary issue, having regard to only the issues that were before the Tribunal. The issues before the Tribunal at the hearing on the 5th to the 7th September were two issues of practicability – firstly, the Respondent’s assertion that it is not practicable to re-employ the Claimant in any post because the Respondent has a genuine and rational belief in the Claimant’s misconduct and has lost trust and confidence in him, and secondly the practicability of re-employing the Claimant in any of the posts in paragraph 2.17 of his witness statement because of their availability, the Claimant’s suitability for the roles and the ongoing redundancy process / overstaffing. The Tribunal also asked for submissions on contribution which the Respondent has provided. The Respondent requests that the Tribunal proceed to determine the issues above on the preliminary issue of re-employment, as indicated at the start of the remedy hearing, and that the remaining matters be adjourned for consideration at a further hearing. The Respondent asks that the Claimant be refused permission, at this preliminary stage, from relying on any further submissions or evidence. In the present circumstances this is the only way of complying with the overriding objective to deal with cases justly and without any undue delay. The Tribunal can provide directions for the case management of the hearing of those additional matters after it hands down its findings of fact on the two preliminary issues of practicability set out above. …[24]Paragraphs 140 and 141 of my decision, specifically dealt with the respondent’s email of 8 September 2022.[25]It follows that the respondent was aware there were issues about the calculation of pay, about which it requested a further hearing and the provision of directions to achieve that. - 4 -[26]The respondent specifically envisaged that two matters should be decided as preliminary issues with I can summarises as follows: whether it was impracticable to reinstate the claimant because of the loss of mutual trust and confidence; and whether he could be re-engaged to in specifically identified roles, having regard to a number of factors including his suitability and the ongoing reorganisation of the respondent. I had made it clear at the hearing that contributory fault remained in issue.[27]The respondent did not expand on what was meant by a preliminary issue. The respondent is represented and must be taken to understand what a preliminary issue is in the context of the Employment Tribunals Rules of Procedure 2013. Preliminary issues are defined by rule 53 (3) to include "any complaints, any substantive issue which may determine liability…" In this context the “liability” being determined was the principle of reengagement or reinstatement in the context of the defences advanced. The determination of the final sum to be paid to the claimant was not determinative of the “liability” to re-engage, but is a necessary calculation following the determination of the point of principle.[28]No mechanism for recording the resolution of any preliminary issues was suggested by the respondent.[29]The respondent appears to suggest that what it terms a preliminary issue may lead to a simple finding of fact. I reject that submission. In principle, a preliminary issue must be capable of finally resolving a matter, and if it does so, it is not, in my view, a finding of fact, it gives rise to a judgment and it should be perfected by a formal decision. When a preliminary issue is resolved against the respondent that decision is likely to be a judgment affecting fundamental rights.[30]It follows the respondent invited me to finally determined liability to reengage as a preliminary issues, whilst representing that further issues of the financial consequences could, and should, be subject to a further[31]As regards the matters which the respondent advanced as described as preliminary issues in the email of 8 September, my judgment determined those in favour of the claimant.[32]I observe that re-engagement is considered at a point in time. The practicability of employment is considered at that time. At the time I considered it, it was common ground that suitable positions were available. In the future these material facts may change. It follows that deciding the fact, absent an order, could be pointless. The finding of fact should lead to an order determining rights.[33]As for the format of the order, that is dictated by section Employment Rights Act 1996. - 5 -[34]The matters said to be preliminary issues by the respondent go to the question of whether an order for re-engagement should be made. Determination of those issues was dealt with in my reasons. I dealt with the contention that there had been a loss of mutual trust and confidence making it impractical to re-engage. In the context of practicability, I considered, in detail, whether there was any available, suitable post to which the claimant could be re-engaged. It was common ground a number of posts existed which were available and were appropriate for the claimant. I dealt with this at paragraph 62.[35]My decision from 8 September set out the order for re-engagement. It identified the employer, the nature of employment, and, the basis for payment of pay and benefits. I confirmed the salary rate and the requirement to restore the claimant's pension.[36]The quantification of benefits could not be fully finalised, mainly because of the respondent’s failure to comply with orders, or to engage with the claimant. Before me today, the respondent has confirmed that at no stage has it provided the relevant evidence. The respondent stated it will need to provide witness statements with the relevant evidence.[37]I reject the suggestion that the respondent was not able to present evidence on the financial consequences at an earlier stage. It had had two opportunities to present the evidence on which it wished to rely, but had failed to do so. The respondent may have been confused as to how far it needed to cross examine the claimant, but this does not explain the respondent’s failure to serve relevant documents or file evidence, particularly when it had filed its own counter schedule. The reality is the respondent has not served the relevant evidence, and now seeks discretion to do so.[38]The order for re-engagement recognised the practical difficulty of finalising any financial order. The principles for payment were set out, the parties were invited to consider whether they could agree the figures, and in the absence thereof, to serve further schedules and to apply for a further hearing to finally determine the sums payable. This was in accordance with the approach sought by the respondent on 8 September.[39]The claimant thereafter sought to engage with the respondent. In accordance with the order, he produced a schedule of loss. He requested a further hearing, when the respondent failed to cooperate (his application of 17 October 2022). The respondent did not comply with my orders.[41]On 4 October 2022, the respondent's email to the claimant confirmed the respondent was applying for a stay pending the respondent’s appeal. It stated "the council will not be progressing re-engagement as requested." - 6 -[42]On 11 October, the respondent wrote to claimant confirming it was appealing the decision; it stated "the council does not intend to progress the directions relating to re-engagement before the appeal process has been completed."[43]The respondent applied to stay the proceedings by email of 4 October 2022. It said an appeal would be lodged, and stated "in accordance with rule 29 of the Employment Tribunals Rules of Procedure 2013 (“the Rules”), the respondent therefore applies for an order staying the current employment tribunal proceedings including implementation of the order, pending the outcome of the appeal."[44]On 14 November 2022, I directed that the respondent's application for a stay be considered at the hearing commencing 20 December 2022. I note that the tribunal delayed in sending this order, I understand the respondent received it on or around 2 December 2022.[45]On the evening of this hearing, I understand the claimant sent a counter schedule of loss, and a bundle of documents. On the morning of the hearing, the respondent submitted a skeleton argument and further authorities.[46]My order of 14 November contained orders with which the respondent did not comply. I accept the order may have been received late, by reason of the administration’s failure to serve it.[47]If calculation of compensation remained in dispute, both parties were to serve statements, schedules, skeleton arguments and documents in support by 16:00, 13 December 22. This was a further opportunity to serve the relevant evidence. The respondent failed to comply. Delay in service of the order does not explain why the respondent failed to comply with the orders.[48]A PDF bundle was be filed by the respondent no later than, 16:00, 17 December 2022. The respondent delayed and the bundle was filed on the evening of the hearing. The claimant did not have sufficient time to consider it.[49]The skeleton argument filed by the respondent on the morning of the hearing failed to deal with the outstanding financial matters. The respondent's submissions[50]As to section 117 Employment Rights Act 1996 the respondent submits any consideration of compensation pursuant to section 117 should be stayed pending resolution of the appeal challenging the order for reengagement. - 7 -[51]There is no dispute about the approach to section 117, and I deal with this below.[52]As to section 115 Employment Rights Act 1996, the respondent submits that, as the order provided for re-engagement by 26 October 2022,2 and that date has now passed, there can be no alteration, amendment to, or addition to the order for reinstatement pursuant to section 115. The claimant states the tribunal has "no jurisdiction” and, therefore, it is no longer possible to consider any matter relevant to section 115(2)(b) and (d) or to make any further order.[53]The respondent accepts that there is an overlap between the evidence relevant to calculation of any compensation pursuant to section 117, and those matters relevant to any amount payable to the claimant in respect of benefits, as envisaged by section 115.[54]The respondent advanced a number of arguments for why any further consideration of section 115 should be delayed.a. It is said it will involve litigating the same issues twice, before the EAT and the ET.b. Costs may be increased because the respondent may wish to appeal any decision on the same or substantially the same grounds as already before the EAT.c. If the respondent is successful before the EAT in overturning the order for re-engagement, costs may be wasted.d. The tribunal should recognise there are two stages when practicability may be considered, and practicability for the purposes of section 117 must be considered separately.e. The respondent has had insufficient time to prepare for the hearing on 20 December in that it has not been able to complete disclosure, raise questions with the claimant, investigate the position in relation to the pension, or produce evidence.f. The respondent's main witnesses are on annual leave on 20 and 21 December 2022, and there been insufficient time for them to prepare, or for witness statements to be produced.g. The claimant's disclosure is inadequate: the claimant has failed to adequately explain his earnings, and documents have been produced in a foreign language; the respondent cannot identify the tax payable, particularly given the claimant appears to reside in a foreign country; and it will be necessary to assess pension loss "on the complex basis." 2 The date of compliance was changed under the slip rule. - 8 - The claimant submissions[55]The claimant submissions can be summarised as follows:a. The claimant has complied with the tribunal orders.b. He does not accept there can be no further orders pursuant to section 115. It was always envisaged that the order would need to be clarified.c. The respondent has failed to engage with him or to cooperate in any manner, but has instead refused to consider re-engagement and the practicalities.d. The respondent failed to raise with him any specific questions concerning his disclosure, schedule loss, or financial circumstances.e. The respondent has persistently failed to comply with tribunal orders. There is no good reason why the respondent has not prepared for hearings, either the original remedy hearing, or this hearing. By doing so the respondent has failed to produce the evidence needed to give further detail about the process, and as such, the respondent has frustrated the process.f. The respondent has failed to file evidence, and agree matters that could be agreed. Instead, it insists the respondent should be given further time to file evidence about his benefits.g. It is necessary for there to be further evidence because of the respondent's failure to engage with the process.h. The pension position is not complicated, in that it is envisaged he should be reinstated to the civil service pension, and therefore calculation of the pension on the "complex basis" is not a matter for consideration at this stage, as it is a simple question of reinstating him to the pension scheme. If there are issues relating to deductions for contributions, they cannot be calculated without involvement of the pension scheme.i. The claimant accepts consideration of section 117, and in particular practicability pursuant to that section, is not a matter before the tribunal at present. Further submissions[56]During the hearing, I asked for further written submissions on three matters: - 9 -a. What is the nature of re-engagement order under section 115 Employment Rights Act 1996. In particular, is it a judgment?b. How, and in what circumstances, is it appropriate for a tribunal to make further orders pursuant to section 115. I specifically asked for submissions on the case of Electronic Data Processing v Wright [1986] ICR 76.c. What further direction should be given?[57]The claimant filed further written submissions, which reflected the submissions made before me at the hearing. His submissions are mainly concerned with the further directions to be given in relation to the section 115 claim. In brief, he contends that it is the action of the respondent which has frustrated the process, and that the respondent should not be permitted to benefit from its own failure to engage with him, it’s breach of tribunal orders, and its frustration of the procedure. He points to the respondent’s failure to engage with him, despite his meticulous compliance with tribunal orders, service of documents, and filing of evidence. He deals with each of the outstanding matters, and notes the respondent’s failure to raise any difficulties with him prior to the hearing. He contends that he has made full disclosure, including disclosure of his income. He notes that his figures have not been challenged by the respondent on the counter schedule. He notes the respondent had previously accepted it would be necessary to have a further hearing in order to finalise matters, such as grossing up.[58]He states: [The Respondent’s ] email communications of 4th and 11th October 2022 demonstrate that at no point did they have the intention of proceeding with the re-engagement order. This has the effect of subverting the question of practicability through wilful delay.3 He states further: In order to rectify the Respondent’s failure to comply with any direction so far in the matter, I oppose a stay on proceeding towards the execution of section 115 (2d). I suggest that a revised remedy timetable be established in order to determine the financial remedy at the point of the final appeal decision. Whilst I recognise that there may be cost implications with this suggestion, I contend that any cost implications are outweighed by the impact on me of further delay to justice.4[59]In the further written submissions of 21 December 2022, the respondent addresses the three matter I raised. 3 Para 3 of his submissions of 21 December 2022. 4 Para 7 of his submissions of 21 December 2022. - 10 -[60]The respondent submits an order under section 115 Employment Rights Act 1996 is a judgment.[61]The respondent submits Section 115 orders can be revisited, but only by way of reconsideration; the tribunal should inform the parties of the reasons why the decision is being reconsidered. The respondent also says that “prior to the date on which we engagement was ordered to take place, the tribunal could conceivably have supplemented its previous order under section 115 (2) (d).” However, the rationale for that assertion is not set out.[62]The respondent asserts there should be no directions on the section 115 order, and the only possible further direction would relate to section 117, which should not be considered, in any event, until after the appeal.
The law
[63]Section 115 Employment Rights Act 1996 - order for re-engagement – says, in so far as it is applicable-(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.(2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including— (a) the identity of the employer, (b) the nature of the employment, (c) the remuneration for the employment, (d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re- engagement, (e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (f) the date by which the order must be complied with.(3) In calculating for the purposes of subsection (2)(d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of re-engagement by way of-- (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.(4) ... - 11 -
Law
[64]Section 116 Employment Rights Act 1996 - choice of order and its terms – says, in so far as it is applicable -(1) …(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.(3) In so doing the tribunal shall take into account-- (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re- engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re- engagement and (if so) on what terms.(4) ...[65]Section 117 Employment Rights Act 1996 - enforcement of order and compensation – says, in so far as it is applicable -(1) An employment tribunal shall make an award of compensation, to be paid by the employer to the employee, if (a) an order under section 113 is made and the complainant is reinstated or re-engaged, but (b) the terms of the order are not fully complied with.(2) Subject to section 124, the amount of the compensation shall be such as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order. (2A) There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113.(3) Subject to subsections (1) and (2), if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make-- (a) an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126), and (b) except where this paragraph does not apply, an additional award of compensation of an amount not less than twenty-six and not more than fifty-two weeks' pay, to be paid by the employer to the employee.(4) Subsection (3)(b) does not apply where-- (a) the employer satisfies the tribunal that it was not practicable to comply with the order, ... … - 12 -[66]The Employment Tribunals Rules of Procedure 2013 provide - 1(3) An order or other decision of the Tribunal is either--(a) a 'case management order', being an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment;(b) a 'judgment', being a decision, made at any stage of the proceedings (but not including a decision under rule 13 or 19), which finally determines-- (i) a claim, or part of a claim, as regards liability, remedy or costs (including preparation time and wasted costs); or (ii) any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue); … And at Rule 53 53(3) “Preliminary issue” means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed).[67]The respondent has filed a number of authorities, I discussed with the respondent the principles of law, if any, raised in those cases. I have regard to that discussion in this hearing.[68]I referred the parties to the case of Electronic Data Processing Ltd v Wright [1986] IRLR 8. I am satisfied that it provides some authority for the proposition that the terms of section 115 order may be revisited by a tribunal, if it is necessary, and if it is in the interests of justice. However, Wright does not establish the mechanism. I have been directed to no authority which specifically deals with this point.
Conclusions
[69]It is common ground that any order pursuant to section 117 is the second stage of the re-engagement process, which comes into effect when there has been a failure to re-engage. I do not need to consider the respondent's submissions on this in detail. It was agreed at the hearing that, pending resolution of the appeal, neither party is arguing that there has been a failure of re-engagement such as to engage section 117. Neither party seeks an order pursuant to 117 this stage.[70]I do not consider it appropriate to list a hearing to consider section 117.[71]It is accepted that there must be a determination of whether my approach to practicability for the purpose of section 115/116 was correct. This is a point under appeal. At this stage the respondent has not refused to reengage. As it has not argued that there has been a refusal to re-engage, consideration of section 117 would be premature.[72]If at some point section 117 is engaged, it may be necessary to submit further evidence on the question of practicability; that is inevitable given - 13 - that the process has two distinct stages. The evidence on pensions may be different for section 117, as the claimant would not have been reinstated into the pension, and calculation on a complex basis may be needed.[73]It is arguable there is no need for a stay, as on neither party’s case is consideration of section 117 before me.[74]It has been agreed, by consent, any potential application pursuant to section 117 should be subject to a stay. It follows that the respondent's application for a stay in relation to this part of the claim was discussed in detail, and ultimately agreed by the claimant, and accepted by the tribunal.[75]The stay will continue until 20 June 2023. The parties must write to the tribunal no later than 16:00, 14 June 2023 confirming whether the order should be continued or lifted. Either party may apply at any time to lift the stay, and request an order pursuant to section 117.[76]Should there be further consideration, at this stage, of the section 115 order? This raises, broadly, two issues. The first is whether there is a jurisdictional bar as envisaged by the respondent. The second is whether I should exercise my discretion to make any further order to proceed, and to relist the matter for further consideration.[77]When making an order pursuant to section 115, there are, broadly, two matters to consider. First, the tribunal must decide a point of principle, which is whether there should be re-engagement (having resolved there should be no order for reinstatement). In doing so, the tribunal must have regard to section 116(2).[78]Second, if the section 116 consideration is resolved in favour of the claimant, the tribunal must set out the terms of the order reflecting the matters set out in section 115(2)(a) – (f).[79]As noted above, the respondent invited the tribunal to consider resolution of the first point as a preliminary issue. It was envisaged by all that there could only be limited engagement with the detailed financial matters in the terms of the order. They were to be decided at a later date.[80]In my first remedy decision, when deciding re-engagement in principle, I had regard to section 116. I considered the question of practicability, which must be decided, on the evidence, but on a provisional basis. I considered contributory fault, and whether it was just to order reengagement. I considered the availability of employment. I resolved this issue in the claimant’s favour, for the reasons given in my decision.[81]It was necessary to record the decisions in an order. I do not accept that the “preliminary issue” was simply a resolution of fact. That was never raised at, on envisioned at, the hearing. - 14 -[82]The decision was taken pursuant to section 115, that section provides for an order to be made. If the respondent envisaged that the issue, could be resolved, or recorded, in any different matter, it has failed to give any adequate submission on the point. I have no reason to revisit my decision on the principle of re-engagement, nor has any party asked me to do so.[83]For the purposes of section 115, the questions of practicability and whether it is just to re-engage have been resolved. I accept if there is a section 117 consideration in due course, practicability is considered further.[84]The second stage of a section 115 consideration requires me to consider section 115(2).[85]The respondent alleges that there can be no further consideration and no further orders can be made. The first question is whether there is a jurisdictional bar, as alleged by the respondent.[86]The respondents main concern appears to revolve around section 115(d). It appears to be respondent's case that I can no longer make any order clarifying what amount may be payable by the employer in respect of any benefit.[87]Is it possible to make a further order clarifying matter which could not be clarified at the first remedy hearing, and in particular to give further detail of the benefits payable, and the calculation of them, pursuant to section 115 (d)?[88]In general, it is possible to give judgment in relation to part of a claim. In this case, there has been a judgment on liability, and remedy was left to be decided. There may be judgments on preliminary issues, e.g., as whether an individual has a disability.[89]It follows the fact that there is a judgment, does not preclude all further consideration.[90]The scope is not unlimited. Where there has been judgment on a part of a claim, that is final, subject to appeal or reconsideration.[91]Section 115 refers to “an order for re-engagement.” Under the employment tribunal rules, decisions are either case management orders or judgments.5 However, it is not clear to me that a section 115 order can neatly be characterised as a case management order or a judgment. Arguably, it has elements of both. I accept it does appear to resolve part of the claim “as regards liability”. However, whether it finally resolves all points, is open to question. Practicability must be resolved for the purposes of section 115. Viewed one way, it is final, at least for the purpose of section 115. If the respondent refuses to re-engage, the 5 Employment Tribunals Rules of Procedure 2013 1(3) - 15 - question of practicability, a matter which is intrinsic to the initial order in relation to section 115, can, and must be, revisited. This lack of finality is not easily reconcilable with the employment tribunal rules. This is not a matter I need to resolve.[92]Further reconsideration of the terms of section 115 and whether they have been breached is envisaged by section 117. Where there has been reengagement, there can be an award for the balance of the compensation envisaged under section 115, by an application pursuant to section 117(1)(b).[93]The finality of a section 115 order was considered in by the EAT in Wright. Mr Justice Popplewell had not doubt that there could be further consideration. At paragraph 18 he stated: … it is open to an Industrial Tribunal, if the terms of their order are not sufficiently clear, thereafter to remedy that fact. The function of an Industrial Tribunal is to seek to do justice in a practical way between employer and employee. It would be perfectly ludicrous if this order could not be interpreted, for instance, as preventing the appellants from re- engaging the respondent in Australia. In our judgment, it is open to an Industrial Tribunal to give effect to their intentions by filling out the terms of the order, if the terms of the order are either ambiguous or silent as to an important point. It would have been wiser no doubt for the Industrial Tribunal to have specified the area of work, but it is quite clear from their decision that they had no sort of notion that Manchester was a place where the appellants would re-engage the respondent…[94]I do not read Wright as limiting those terms which may be considered further or clarified by way of further order. It is permissible for an order to be made knowing that there are matters still to be resolved.[95]It follows that it is arguable that there are times when a section 115 order can be made but be expressly subject to detail to be provided in relation to a number of matters. That position was expressly embraced by the respondent at the end of the first remedy hearing. The respondent’s position has now changed. Had it raised the concerns that it now does, it may have been that the claimant would have made different submissions, or the tribunal could have taken a different approach, and even decided the financial matters on the claimant’s evidence, given the respondent’s failure to file evidence.[96]If the respondent is right that there is some form of jurisdictional bar, it would be inappropriate for me to ignore the assumptions made at the hearing, and the representations of 8 September 2022 made by the respondent. To do so may allow the respondent to either benefit from its own breach of order, which prevented full consideration of the benefits at the original remedy hearing, or treat as final an order when that was not the respondent’s position at the hearing.[97]Whilst Wright was clear as to principle, it did not set out the mechanisms by which the order could be clarified or added to. It seems to me there are two possibilities. First, if the section 115 order contains elements of - 16 - judgment and direction, the directions may be capable of addition or variation either as further judgments or as case management orders. Second, if the entirety is a judgment, it may be possible to reconsider it.[98]If variation of a section 115 requires reconsideration of a judgment, it is the respondent’s position that there is a mechanism to do so. Reconsideration can occur on the application of either party or via the tribunal on its own initiative.[99]It is arguable that the claimant’s request of 17 October 2022, to further resolve the quantum of the benefits, is an application for reconsideration. I do not need to engage with the technicalities of this at this stage. Reconsideration can take place were “it is necessary in the interests of justice to do so.” On reconsideration, the original decision may be varied, revoked, or confirmed. Therefore, variation is open to the tribunal. As to whether reconsideration would be in the interests of justice, I think there can be little doubt: I certainly could not reject the claimant’s application as having no reasonable prospect of success.[100]The primary reason why the financial matters could not be addressed earlier, was the position adopted by the respondent, and its failure to file evidence, in breach of order. Moreover, the respondent represented that there could, and should, be further consideration of the benefits at a hearing, once it had filed evidence.[101]On the respondent’s current position, the claimant has been denied a remedy, and the judgment must be treated as final. Moreover, as that order is unclear, the respondent says it must be set aside, as it cannot comply with the order.[102]In the circumstances where the respondent envisaged that there must be another hearing, if the only mechanism is reconsideration, it is likely to be necessary in the interests of justice. The purpose of a reconsideration hearing would be to consider if the section 115 order should be varied. In particular it would deal with outstanding financial matters, but it may also deal with any other points that require clarification as envisaged by Wright.[103]It follows that I find it is possible to make further orders, albeit the mechanism may be unclear.[104]For clarity, I should record and consider the individual terms of the section 115 order and the parties’ positions.[105]It is respondent's position that the section 115 order fails to adequately identify the nature of the re-engagement, and the benefits payable.[106]As to the nature of the re-engagement, it is the claimant's position that the nature of the re-engagement is clear and properly set out. At the remedy hearing, the respondent accepted that there were positions to which the - 17 - claimant could be appointed, which were suitable for him, and which reflected the position and status he held with the respondent organisation. At least four specific current positions were identified, which were suitable for the claimant, and at the same level at which he was engaged. I dealt with this in particular paragraph 62 of my decision.[107]It is the claimant's case that the order is sufficient to identify the nature of the employment. I observe it may be an error of law to order reengagement to a specific post. Further, no party asked me to specify a post for re-engagement.[108]In relation to the nature of the employment, neither party asked me to expand on or vary my original order. I am conscious that this aspect may be subject to appeal. It would be inappropriate for me to vary my order as to the nature of employment at this stage. If clarification is needed, this may be a matter that can be clarified in due course, as envisaged in Wright.[109]It is not clear to me that the respondent alleges that I failed to set out the relevant remuneration, or to set out any rights and privileges which must be preserved. Neither party has asked for further clarification.[110]At the time the order was made, it was common ground that there could be no final resolution of any amount payable. The respondent specifically invited the tribunal to leave the matter to a further hearing. The order envisaged resolution by the tribunal, should the parties be unable to agree. The parties did not agree, largely because the respondent refused to engage at all, and subsequently failed to comply with the tribunal's orders.[111]It seems to me that it was always envisaged that the order would have to be silent on the exact sums to be paid for the period from dismissal to reengagement. It was impossible to do otherwise. It will be necessary to consider the yearly salary, the effect of any subsequent earnings, the treatment of tax, particularly given the claimant may be abroad, and the issue of grossing up.[112]In addition, questions may arise concerning the pension. Calculation of pension losses on a complex basis does not arise until consideration under section 117, which is not before me. There may be issues in relation to tax and or contributions. These may require evidence. It may not be possible to resolve them until after he has been reinstated into the scheme, and there is evidence from the scheme as to how that will be achieved.[113]Whether the failure to deal with these matters initially leads to the order being defective, such that it must be set aside, is not a matter for me. That is a matter on appeal. For the reasons given, I am not precluded from making further orders, and there should be a further hearing to resolve relevant disputes. - 18 -[114]Having decided that I can and should make further orders to clarify the section 115 judgment the final question is what directions I should now give. In doing so, I must have regard to the fact that the order is under appeal.[115]I should consider in particular the submissions the respondent advances for delaying further consideration. I consider those now.[116]The respondent submits it will involve litigating the same issues twice, before the EAT and the ET. This submission is unclear. If there are matters which are unclear, or on which I have not received evidence, it is appropriate that this matter should be considered and finalised. That is a matter for the tribunal. I observe that that, on the respondent’s case, variation would require reconsideration. Parties may come under a duty to consider applying for reconsideration when contemplating appeal. There are occasion when the EAT will invite the ET to address reconsideration. Where there are matters that have not been resolved, and therefore, are not directly appealed, their resolution may be appropriate.[117]The respondent submits costs may be increased because the respondent may wish to appeal any decision on the same or substantially the same grounds as already before the EAT. I am not persuaded by this argument. Appealing a matter on substantially the same grounds, may produce a saving of cost, as compared to appealling it at a later date. In any event, the further matters to be decided, as envisaged in these reasons, involve new evidence. It cannot be assumed that there would be any appeal, or that any appeal would be on the same grounds. There may be a saving in costs, if there is a further appeal, and if it can be considered at the same time as the current appeal.[118]The respondent submits that if it is successful before the EAT in overturning the order for re-engagement, costs may be wasted. I am not convinced by this submission. Consideration of financial loss is relevant to section 115, section 117, section 123. Liability is not in dispute. Some form of compensatory award will need to be considered. It is likely that there will be a substantial overlap of evidence, and therefore the scope for wasted costs is limited.[119]The respondent submits there are two stages when practicability may be considered, and practicability for the purposes of section 117 must be considered separately. I agree with this. This is not a good reason to not engage with the financial aspects under section 115.[120]The respondent submits it has had insufficient time to prepare for the hearing on 20 December in that it has not been able to complete disclosure, raise questions with the claimant, investigate the position in relation to the pension, or produce evidence. I do not accept this submission. The respondent could have produced evidence at the liability hearing, the first remedy hearing, and the second remedy hearing. The - 19 - respondent chose not to comply with orders. I accept that the respondent’s contention that it has not prepared for this hearing. I accept that the respondent has not put forward its evidence. However, this failure has not occurred as a result of there being insufficient time. It is essentially the respondent’s choice.[121]The respondent states its main witnesses are on annual leave on 20 and 21 December 2022, and there has been insufficient time for them to prepare, or for witness statements to be produced. I received no adequate detail of this. However, it is not a reason to delay a further[122]The respondent alleges the claimant's disclosure is inadequate: the claimant has failed to adequately explain his earnings, and documents have been produced in a foreign language; the respondent cannot identify the tax payable, particularly given the claimant appears to reside in a foreign country; and it will be necessary to assess pension loss "on the complex basis." I note that this is disputed by the claimant. I accept the claimant’s admission that he has provided evidence and disclosure. I am unconvinced that there is a difficulty caused by disclosure of documents in a foreign language. Particularly in the context of this employer. I accept the claimant’s submissions that the respondent has done nothing to engage with his schedule of loss, or to seek clarification by way of questions or otherwise. The respondent’s submissions is not a good reason for delaying a further hearing.[123]The respondent has made representations about the difficulty calculating the pension loss. As I have noted, the questions pursuant to section 115 may be different to those questions which be relevant to section 117. I do not see this as a good reason for delaying the hearing.[124]I accept the claimant has, essentially, complied with all directions. He has provided his schedule of loss. He has provided information in relation to his current earnings and has given witness evidence. He has, essentially, sought to do all that he should in order to put the evidence before the tribunal on which the benefits payable can be quantified.[125]During oral submissions, Mr Kean confirmed that the respondent has not prepared, and it needs more time to prepare. It wishes to explore many issues including following: issues relating to pension; calculation of any pension loss in a complex basis; availability of employment; the rates applicable to individual job; the total sums received by the claimant; issues relating to taxation, including foreign taxation. There is no reason why respondent could not explore these matters earlier. The respondent now seeks further time to produce that evidence, should it be necessary. This is a recognition the failure of the respondent to produce that evidence initially.[126]I am conscious that the claimant was dismissed for some 3 and a half years ago. There is force in his argument that delay been occasioned by - 20 - the respondent’s approach, whether that delay has been intentional or not. The argument that costs may be wasted is limited in this case, because much of the evidence will be needed regardless of the type of remedy[127]The claimant is, rightly, concerned about delay, and puts the reason for delay largely at the respondent’s door. There is considerable force in the claimant’s argument. I do have regard to the overriding objective. The case should be dealt with fairly and justly. I should have regard to saving the expense. I should have regard to avoiding delay. The balance is not easy to resolve in this case[128]The parties should already have exchanged schedules of loss, relevant documents, relevant evidence, and skeleton arguments. Much of that evidence will be needed, regardless of the form the remedy hearing may ultimately take place. The parties should now comply with the directions to prepare. As noted, breach an order is not itself a good reason to extend time. I will in this case extend time for the respondent to comply. That is an exercise of discretion as I consider, despite the breaches, it is possible for there to be a fair hearing and the respondent should be given a final chance to comply; however, if the respondent fails to comply on this occasion there should be consequences and the respondent should be debarred from relying on the evidence without leave.[129]There is possibility that the nature of the next hearing will depend in part, but not wholly, on the appeal. The respondent is seeking an expedited appeal hearing. If the appeal hearing is expedited, it may be that the next remedy hearing can take place without undue delay. If it is not expedited, there is a risk that there will be further serious delay, and that is not in the interests of justice. Moreover, if the EAT hearing is not expedited, and if there is a possibility of further appeals in this matter, there could be significant further delay. That delay is not in the interests of justice and undermines the right to a fair hearing.[130]If there are possibilities of further appeals, which may cause delay and further expense, it may be better for all relevant decisions before the employment tribunal to have been dealt with. This gives the best chance of delay occasioned by future appeals being avoided, and the cost of the appeals may be ameliorated, to some extent, if the appeal can be cojoined.[131]I will delay the decision as to whether to list a further remedy hearing (whether that hearing proceed simply as adjourned hearing, or as a reconsideration application) until the parties have had a reasonable opportunity to ascertain whether the appeal will be expedited. Both parties must write to me informing me the position in accordance with the orders given. If it appears that the appeal is not expedited, it is likely that I will list the matter for a further hearing. I do not consider that to be a good - 21 - reason to delay preparation of matters that are substantially common to all the possible types of future remedy hearings.[132]Finally, I note that I am yet to consider whether there should be continuing anonymisation of Ms ZZ. I shall direct that the parties must make representations, as to how it should be resolved, and to set out their proposal for directions. It is unclear to me whether Ms ZZ has been contacted. The respondent should clarify whether it is in contact with Ms ZZ. If so, it is appropriate that she should be informed of her right to make an application for an order for anonymisation. My finding of fact on contributory fault may be relevant and that should be brought to her attention.[133]The respondent should endeavour to be in a position where it can inform me whether Ms ZZ has been told of her right to seek anonymisation.