Mr M Abdul Wahid v Ministry of Waxing Ltd: 2206483/2016
EMPLOYMENT TRIBUNALS
Case No 2206483/2016
Between
Mr M Abdul WahidClaimantMinistry of Waxing LtdRespondent
Before
Employment Judge GlennieMr M Singh (instructed by Counsel) for claimantMs S Wookey (instructed by Counsel) for respondentDate 30 May 2017
JUDGMENT
[1]The name of the Respondent on the Tribunal’s file is amended to Ministry of Waxing Limited.[2]The complaint of unfair dismissal is dismissed.
REASONS
[1]In this matter the Claimant, Mr Abdul Wahid, makes a complaint of unfair dismissal and the Respondents resist that complaint.[2]The issues in the case are these:-2.1 What was the reason for the dismissal? The Respondents rely on a reason related to conduct and the Claimant disputes that this was the true reason.2.2 If the Respondents prove the reason on which they rely, did they act reasonably or unreasonably in deciding to dismiss the Claimant?2.3 Beyond these there were potential issues as to the principle in Polkey and contributory conduct, which did not arise for decision in the event. It was agreed that in the first instance I would hear and determine the issues as to liability, including Polkey and contributory conduct, if arising and that I would pass on to remedy if that proved necessary.[3]There are two interlocutory issues that should be mentioned. One is that at the outset of the hearing I increased the time allocated from 3 to 4 days. Secondly, after the Respondents had closed their case, Ms Wookey sought to introduce some documents going to what was discussed at a meeting that took place on 15 April 2016 and to which I will make further reference. I declined to admit those documents on the basis that it seemed to me unlikely that they would affect my decision on the issues that had to be decided, and that in the event that there had to be further evidence about them, that might jeopardise even the extended timetable for the hearing.[4]I turn then to the evidence and my findings of fact. I heard evidence from the Claimant himself. On behalf of the Respondents evidence was given by the following witnesses:- Ms Cynthia Chua, a Director. Ms Laura Collignon, a Barrister who conducted the appeal about which I will make further comment later. Mr Jerry Singh, a Director. Mr Joel Lee, a Director. Mr Michael Smith, a Bookkeeper with George Hay & Co who were the Respondents’ accountants.[5]There was an agreed bundle of documents and page numbers that follow relate to that bundle.[6]By way of background, the Respondent operates a small chain of waxing salons in London and is owned by Strip UK PTE Limited, a private limited company registered in Singapore. That company is in turn owned as to 80% by Spa Esprit Group Pte Limited (of which Ms Chua is joint CEO with her brother) and as to 10% each by the Claimant and Mr Lee. The Claimant, who was known within the business as “Shah”, had worked in recruitment for some years before joining the Respondent as Director of UK Operations in 2009. He was responsible for official applications, finance, recruitment, HR and general administration. His initial salary was £48,000 per annum plus commission, and by August 2015 had reached £84,000 plus commission.[7]There was a fair amount of evidence given about financial arrangements between the parties that are not in themselves directly in issue in this case, but are nonetheless subject of dispute and have some bearing on why the parties may have acted as they did. I have not attempted to make findings about all of these, nor would it be right for me to do so as they may be the subject of other litigation or other consideration. I have therefore restricted myself in this regard to referring to these matters when necessary to do so in the context of the issues in this case.[8]A particular point relates to the use of credit cards within the Respondents’ organisation. It was generally accepted that directors would use personal credit cards to pay business expenses and would then reclaim those expenses from the company, paying the credit card bill themselves. The Claimant until mid 2015 operated in a different way: he put business expenses on his personal credit card or cards (I was told about two American Express cards) but then he paid the bills from the Company’s account, subsequently reconciling or being expected to reconcile his business and personal expenditure.[9]Finally by way of preliminary observations, it was an usual feature of this case that two dismissals occurred, one on 4 April 2016 and the other on 24 May 2016. It is agreed on both sides that it was that of 24 May 2016 that was the effective termination of the Claimant’s employment, not least because the first dismissal or purported dismissal was a dismissal on notice and that notice period was still running as at the 24 May. As a matter of legal analysis, it is agreed on both sides and I find to be correct, that what I have to consider in the first instance is the dismissal of 24 May.[10]I turn then to my findings of fact so far as they are relevant to the dismissal, and I emphasise that there is quite a deal more background which I have not sought to cover at this stage. The facts relating to the dismissal really begin with a reconciliation exercise that was carried out in mid 2015, being completed in July of that year. This was a reconciliation, going back several years, of the Claimant’s American Express statements in relation to the payment of personal and business expenses. This involved the Claimant, Mr Singh and the accountants, in particular Mr Smith.[11]The Claimant’s position was that he agreed that the upshot of this was that £16,650.00 was due from him, as he put it, in full and final settlement of the bills and the reconciliation of his credit card statements. I say that he agreed that £16,650.00 was due: that was not the Respondents’ position as I will explain. They said that more was due than that, but the Claimant accepted at any rate that that sum had been found to be due. Mr Singh’s position on the matter, as described in paragraph 55 of his witness statement, was that on the conclusion of the reconciliation process, he “…was under the impression at this time that the issues had all been sorted out, I was not aware that there remained a number of payments which had not been reconciled or as now appears that Shah, [the Claimant] did not go back to George Hay so that the outstanding expenses could be reconciled”.[12]Then in paragraph 57 Mr Singh said that in October 2015, the Claimant paid back £76,650.00 representing the expenses that had been identified during the reconciliation. The Claimant’s case was that the figure was £16,650.00 and that the other £60,000.00 was by way of an investment in the Company. I noted that in the course of the interview conducted by Ms Collignon in connection with the appeal at page 487, Mr Singh said that there were a few outstanding items, “maybe about £6,000.00 we could not reconcile and I told him to go through it and come back to George Hay”. That, it seems to me, is inconsistent with what Mr Singh was saying about everything being sorted out. He then said on the same page, “I said to Shah, “don’t use the card”. This meeting was maybe March 2015, at the time I assumed the company card was the Amex card, I thought he had one card which was the company credit card.” That last point is something which was echoed in the evidence of Ms Chua when she said that up until a later point, whenever there was any discussion of the Claimant’s use of a card, she believed that he was using a company credit card and not his personal credit card.[13]Remaining with Mr Singh’s interview with Ms Collignon, again at page 489, Mr Singh said that they had sorted out the last 3 to 4 years of expenses and there was only about £6,000 outstanding. A little later he said that he thought that the reconciliation had resolved the issue. It seems to me therefore that Mr Singh’s witness statement, in which he said that all had been sorted out and he was not aware of any outstanding payments, is probably inaccurate and that he was in fact aware that something like £6,000.00 was seemingly outstanding at that stage.[14]Turning to Ms Chua’s evidence, she said in her witness statement at paragraph 38 that she told Mr Singh to tell the Claimant not to use his credit card, meaning as I have said, what she thought was a company credit card rather than his own credit card. That caused me to turn back to the grounds of resistance at page 24, because that contained in paragraph 10 the statement that at a meeting in July 2015, Ms Chua said a number of things to the Claimant, including that he was specifically informed that no business expenses should be paid for by his Amex card and he was told that any future breaches would be treated very seriously and could amount to a breach of employee and fiduciary duties as a Director.[15]The origin of that pleading is not clear because at the outset of her evidence Ms Chua was taken to that by Ms Wookey: she said that this was not correct and that she did not have any recollection of such a meeting with the Claimant. Finally on these particular points, where it seems to me that there are some discrepancies and inconsistencies in the evidence on the Respondent’s side from Ms Chua and Mr Singh, at page 445 I was referred to an email of 6 April 2016 from Mr Smith in which he said that £16,650.00 had been paid in repayment of what he put as “part of the balance”, so seemingly consistent with the Claimant’s account of the amount of the expenses and that £60,000.00 was paid as an investment.[16]I have mentioned those inconsistencies: ultimately, it is not necessary for me to make specific findings about the amounts and to what they were attributable. The important points are that the reconciliation process had ended up with a substantial figure due to be paid by the Claimant to the Respondents by way of repayment for personal expenses that had been discharged by the company; and secondly that it is apparent that the reconciliation process had not been absolutely completed and there were still some items outstanding to the extent of something like £6,000.00.[17]Turning then to the period after the reconciliation, there was a series of emails passing between Mr Smith and the Claimant about records that the latter sought for preparation of the management accounts. I will not go through all of them and nor was I taken to all of them, but at page 951 there was an email of 6 August 2015 asking for various items of information of the sort that one would expect accountants to be seeking, such as bank statements and merchant statements from the various outlets that the Claimant was responsible for. More significantly in relation to what I have to decide, there was a request for the British Airways Amex card, that is the Claimant’s personal card, statements for April, May, June and July 2015. That request was repeated at page 949 on 12 August and then over the following months the April, May and June statements from 2015 remained outstanding and Mr Smith continued to request them.[18]Without going into details, there were from time to time other statements that were requested, and it is evident that they were provided because they dropped out of the picture and Mr Smith ceased to ask for them, indicating to me that he had been provided with them. The same was not true of the April, May and June statements and Mr Smith continued to maintain that they were outstanding and should be sent to him. As an example of that, at page 935 on 9 November 2015, the position there was that the statements for April, May, June and at that point October were requested. The last email in the series is at page 902, that is of the 6 April 2016 and at that point the April, May, June 2015 statements were still outstanding and Mr Smith was by now also asking for the statements from January, February and March 2016.[19]The Claimant was asked about this matter in cross-examination and to the extent that it is material to the issues, he said that his explanation for not responding to Mr Smith about the April, May and June 2015 statements was that Mr Smith already had them. He did not suggest that he ever said that to Mr Smith by way of reply to his request, and in essence the Claimant said that he just ignored the requests because he regarded them as repetitive requests for something that Mr Smith already had.[20]It seems to me that the most likely explanation for Mr Smith continuing to ask for those statements is that he did not in fact have them. I do not accept the Claimant’s explanation for ignoring those emails. I note that he did not ignore other aspects of what Mr Smith was requesting. He did pass on other statements from time to time when they were requested, not always as promptly as Mr Smith wanted, but nonetheless he did send them on. Furthermore, it seems to me there is no reason why the Claimant could not have simply sent on the copies of the statements again if he believed that Mr Smith already had them, and in due course as I will explain he did produce them at a later stage of the proceedings.[21]The other point that arises from this particular part of the evidence is that it seems to me that, if the Claimant had in fact believed at the time that everything up to and including the July reconciliation had been sorted out and that was the end of the matter, then Mr Smith would in his eyes have had no reason to be asking for the three outstanding statements. In that case, the question whether he already had them would not be relevant, the answer to the point would be that they were no longer needed because that whole aspect of the matter had been drawn to a conclusion. However, that is not what the Claimant gave by way of explanation.[22]The Claimant’s evidence continued that, between July and December 2015, he only settled business expenses via the company account in relation to his credit card. In other words, he applied the same practice as the others did of discharging his own personal expenses and then charging the company, in a slightly different way, that is by paying that part of the expenses from the company account. Then in March 2016, he put the whole of his credit card bills for January to March through the company account, returning to the practice that he had followed before the reconciliation in 2015. His evidence about that was that he considered that this was acceptable as he had returned to a positive balance in his director’s loan account. He said that his expectation was that any question about the expenses would have been resolved amicably, which I understood to mean by the same sort of process as had been carried out in the 2015 reconciliation, albeit on a smaller scale.[23]The other point to mention before turning to the matters that most closely concern the dismissal is that it is common ground that there was a degree of cash flow problem in the Respondent’s UK business in the early months of 2016. The Claimant’s case is that that was not unusual and that there were cash flow problems for rather more than just those few months, but ultimately whether that it is right or not is not really material to what I have to decide.[24]On 1 April 2016, a meeting took place between the Claimant and Ms Chua who had come to the UK, she being usually based in Singapore. There is some measure of agreement between the parties as to what happened at that meeting. Ms Chua’s evidence is that she said to the Claimant that the business was not doing well, that she needed to replace him and that they needed to call it quits. When asked about the question of a further capital injection of some sort from the Claimant, Ms Chua said that she did not dispute that the business needed money, but that she did not say that that was the reason for or connected with the need to call it quits. In her evidence, she said that her reason for taking that view was the Claimant’s underperformance in his role within the Respondent Company.[25]The Claimant’s evidence about this meeting was that Ms Chua asked him for £60,000.00 by way of an investment in the company and said that if he did not do that then his shareholding would have to be reduced. He said that Ms Chua said that she was not happy with the way that things were being run and that he needed to leave for the good of the business, and so in that way rather reflecting what Ms Chua said she had told him at that meeting. The Claimant said that his belief was that Ms Chua wanted him out of the business in order to let someone else take it over now that he built it up to a decent size. It was put to Ms Chua on the Claimant’s behalf that the reason why she wanted him to leave was that he had refused to make the capital investment. Be that as it may, the Claimant’s evidence was that he was shocked by what was said and that he asked for a week to think about the matter.[26]On 4 April 2016 Ms Chua gave to the Claimant a letter at page 125 dated 1 April 2016 which said that his employment would be terminated with effect from 1 April 2016, giving 3 months notice, and stating that his last day of service would be 30 June. The letter said this:- “The reason for termination of service is due to your inability to deliver your duties as per your job role since January 2015. You were also not able to achieve your last three month’s sales and operations goal as per agreed and that being your last opportunity for us to retain your service.”[27]I should say that Ms Chua’s evidence was that in Singapore, that being the jurisdiction with which she is familiar, the only requirement in terms of employment law on terminating someone’s employment is to observe the notice period, and that at this point she was unaware of the legal provisions about unfair dismissal that apply in the United Kingdom.[28]Following this, on 6 April 2016 the Claimant was signed off sick and around this time Ms Chua said to other employees within the UK operation that the Claimant had stepped down or was stepping down from his job. She removed his email access. Her evidence was that she did that because the Claimant did not want to be contacted since he was unwell. I have to say that I doubt that explanation, the Claimant could have decided not to look at his emails if that was something that he did not want to do, and it seems to me rather more likely that Ms Chua did what she did because she thought that the Claimant would not be coming back to work.[29]Moving then to 15 April 2016, Ms Chua’s evidence was that there was a meeting that she attended with Mr Davis and Mr Miller of George Hay & Co that had been arranged for her to sign some documents that were unrelated to the Claimant and the matters involved in this case. In paragraph 62 of her witness statement she said that Mr Davis disclosed a number of troubling things to her at the meeting that she had not previously been aware of, all relating to the Claimant’s use of his credit card. These were the 2015 reconciliation not being complete because there were missing statements; that other payments had not been taking into account in the reconciliation; that now there had been a failure to provide the American Express statement for January to March 2016; and the company had paid something like £47,000.00 in relation to those statements. She said in paragraph 63, “I was shocked to hear this, I had been under the impression that all the issues with the personal payments had been sorted out by July 2015 and that Shah would no longer be using the credit card in relation to the business and that it was a business card. All those impressions were now wrong.”[30]In her oral evidence given in answer to a question from me, Ms Chua said that in fact she had asked Mr Davis and Mr Miller whether the reconciliation had been settled properly and that led Mr Davis to say what she related in her witness statement. It is not immediately obvious why Ms Chua would be asking that if she believed that all the issues had been sorted out in July 2015 and if as she maintains, she thought the matter had been closed and a line drawn under it, as stated in paragraph 39 of her statement. Having said that, the fact that she asked about the reconciliation is perhaps not inconsistent with the situation as she describes it, which is that she had become dissatisfied with the Claimant’s performance and that she decided that he should be dismissed for reasons related to his performance. It seems to me that she might in those circumstances ask whether there was anything outstanding from the reconciliation because she would be anticipating the Claimant leaving his employment and that being perhaps the last chance in practical terms to sort out anything that might be outstanding from that process.[31]There then followed on 18 April 2016, at pages 159 to 163, a letter from solicitors instructed by the Claimant. That made a number of points about the dismissal that had taken place and said that there would be a likely Tribunal claim arising from it. The letter also referred to matters affecting the Claimant’s shareholding in the Respondents. Ms Chua’s evidence was that although this was emailed to her, she did not see this at the time, she not being particularly good at checking her emails, and it was only when she spoke to her solicitors about the question of the Claimant’s use of his credit card that she was referred to this particular email.[32]Be that as it may, on 22 April 2016, at page 188 the Respondents’ solicitors sent an email to the Claimant’s solicitors referring to the letter of 18 April and saying that the Respondents had not previously seen a letter of 18 April. Then they added “for the avoidance of doubt our instructions are that Mr Wahid is not dismissed, our client is inviting him by post today to a disciplinary hearing.” That, the Respondents say, was intended to amount to a retraction of the dismissal communicated on 4 April 2016. If that is so, the position was obscured somewhat by a further letter from the Respondents’ solicitors at page 273 on 5 May saying that, among other things, they confirmed that the effective date of termination would be 3 June 2016 in accordance with the relevant notice period because the letter was handed over on 4 April and not 1 April. That does not sit very happily with the notion that there had been a retraction of that dismissal, but ultimately that does not matter because of the agreement that the effective dismissal to be considered is the one that followed on 24 May.[33]So returning to 22 April, there was a letter at page 168 from Ms Chua inviting the Claimant to a disciplinary meeting. That included the observation in relation to the use of the American Express card “I have warned you previously that it is a matter of gross misconduct if you allow your personal expenses to be paid on the company’s account”. When asked about this in cross examination, Ms Chua said that she thought that she understood this as referring to an email of July 2015. It was not clear to me whether ultimately Ms Chua was saying that there was some other email of July 2015 that has not found its way into the bundle that said this. If there was such an email then it would be an extraordinary omission from the bundle of documents on the Respondents’ side, and it seems to me improbable that there was. If it was a reference to an email of 15 July 2015 that was sent out by the CFO requiring a more stringent approach all round to financial accounting and practices then that email did not make any reference to gross misconduct.[34]On 5 May 2016 at page 202, the Respondents’ solicitors sent a letter setting out the allegations that the Claimant was required to answer. These were:- 1. Failure to provide in a timely manner expenses receipts to enable the company’s records to be kept up to date. 2. After July 2015, continuing to authorise the company to pay his personal Amex card despite a clear instruction from the Company that this constitutes gross misconduct. 3. After July 2015, incurring personal expenses on the Amex card and directing the company to pay these personal expenses. 4. From March 2014 to February 2015, instructing the company to pay American Express a total of £23,557.31 and failing to provide any reasonable explanation for these amounts and Hereafter I shall refer to those allegations by number when they occur elsewhere in documents or in the process.[35]The Disciplinary Hearing took place on 13 May 2016 and was conducted by Mr Lee, with notes at pages 313 to 321. These were not referred to in cross examination of any witness; I have read them and in fact they add very little on the Claimant’s side to the written representations which he sent on 16 May. On that date, apart from the written representations, the Claimant also produced the Amex statements from April, May and June 2015. His written representations are at pages 287 to 293 and some matters that he raised were as follows.[36]On page 289 in paragraph 11 the Claimant said that the reconciliation was carried out and that at no point was he ever warned or met with Ms Chua to discuss his use of the Amex for business expenses, nor was he told that this constituted gross misconduct. At page 290, in paragraph 16, he said that he was in discussions with Mr Smith to go through the last 3 months’ statements, when he was cut off from his email and so he was unable to reconcile them. He said that he did not have time to work out payments which totalled £3,803.75, so these remained to be settled. He wrote: “This is the only sum that remains outstanding from me to the company, this would have been reconciled amicably with the company like it was previously.” In other words, the Claimant was saying that on looking at the statements from 2016, £3,800.00 odd of his personal expenses had gone through and been paid by the company, but as he said, that he would expect to be able to deal with that amicably, presumably in the same way as the reconciliation figure, that is by paying it.[37]Then at page 291 to 292, in relation to allegation 4, the Claimant said that this related to the pre-July 2015 period which had been resolved and reconciled. Then he went on to deal with a particular item which it turns out related to the purchase of a watch for Mr Singh, and he referred to other purchases on Mr Singh’s behalf that he said might account for some of the discrepancies, all of this referring to the pre-July 2015 figure.[38]Mr Lee produced a letter on 24 May 2016, at page 308, in which he communicated his decision to dismiss the Claimant without notice. In brief he said the following in relation to each of the allegations. In respect of allegation 1, he said that failing to provide the statements for March, April and May 2015 meant that an additional reconciliation would now have to be carried out and that there were additional monies arising from those which were owing to the company. He said that failing to provide the records in a timely manner had caused the company serious difficulties because the accounts from 2015 onwards remained in a draft state and had not been finalised. He said that this amounted to very serious misconduct, enough to justify summary dismissal.[39]In relation to allegation 2, Mr Lee said that he could not find an unequivocal instruction that using the Amex card in this way constituted gross misconduct. He said that he found it more likely than not that the Claimant was informed that he should not continue to use the card in that way, but ultimately he found that that this did not in itself constitute gross misconduct.[40]On allegation 3, although he found that there had been a repayment in October 2015 of some of the monies identified as being payable, Mr Lee found that the April to June statements in 2015 included significant personal expenditure, including £2,700.00 for personal air tickets. He referred to the 2016 statements and the £3,800.00 odd of personal expenses on the card, and he said that he did not accept that the Claimant intended to settle those separately. Finally on allegation 4, Mr Lee said that he found that these particular sums of £23,000.00 odd had not been included in the reconciliation and that these were sums that had been identified as being due to the company. He stated that he also found this to be a matter of very serious misconduct.[41]The Claimant appealed by a letter of 1 June 2016 and that appeal was heard by Ms Collignon who, as I have said, is a barrister in independent practice and who was brought into the matter for the express purpose of determining the appeal.[42]The appeal meeting took place on 15 June 2016 and on 25 July Ms Collignon sent an outcome which is at pages 576 to 591. Ultimately she upheld the decision to dismiss the Claimant, but there are some aspects of her findings on the appeal which are relevant to note.[43]On allegation 1, Ms Collignon found that the failings identified in relation to the April, May and June 2015 statements were sufficiently serious to amount to gross misconduct so as to justify summary dismissal. She said in paragraph 52 on page 587, that the Claimant had failed to provide some statements to the accountants for many months despite being repeatedly requested to and that he had used his personal card for business and personal payments but had not provided a breakdown.[44]On the second allegation, Ms Collignon said that this had not been a ground for dismissal and so she did not consider it in any detail.[45]On the third allegation, on page 588 Ms Collignon said that it should have been obvious to the Claimant after the reconciliation exercise that it was not acceptable to continue to pay personal expenses with company money. She said: “I am not able to determine whether there was any clear instruction to this effect or not, but given the circumstances it should not have been necessary to give such an instruction”.[46]Then in paragraph 58 in relation to the 2016 payments, Ms Collignon said this: “Mr Abdul Wahid has explained his use of his personal Amex card in early 2016 to pay business expenses because company cash was very tight at this time. However, this is inconsistent with then using company funds to pay his personal expenses when paying off the Amex card. If the company was short of money then Mr Abdul Wahid should have been meticulous in ensuring that the only payments made towards the balance on his Amex card were for business expenses.”[47]On page 589 Ms Collingnon stated in relation to allegation 4 that, contrary to Mr Lee’s conclusion, she did not find this to give the basis for a finding of gross misconduct. She said in paragraph 62 that she would not find it surprising if there were significant amounts outstanding, but added: “I have not seen sufficient evidence that this issue was raised in the course of the 2015 reconciliation exercise to be satisfied that Mr Abdul Wahid knew that it needed to be resolved”, and so therefore she found that this particular allegation was not to be upheld.[48]Ms Collignon went on to consider to some extent the significance, if any, of the previous decision to dismiss the Claimant. She said that this was a troubling aspect of the case and that one possible inference was that the whole disciplinary process was a sham, the company having decided to dismiss the Claimant before the disciplinary process was even thought of. She said in effect that she could not say whether the dismissal on 24 May was predetermined in the sense that the company had decided to dismiss the Claimant in any event, but she said that approaching the matter as an impartial outsider it was clear to her that there were grounds for dismissal.[49]Finally, I should say that at the end of her findings in paragraph 71 on page 591, Ms Collignon said this: “I do not make any finding of dishonesty against Mr Abdul Wahid, I do not uphold the finding in the disciplinary letter that he did not intend to settle personal expenses incurred between February and April 2016 separately. My view is that there is insufficient evidence to support this finding. However, he was extremely careless in the way in which he mixed his own and the company’s finances and this led to serious problems for the company, including a lack of day to day transparency in relation to expenses, problems finalising its own accounts, problems relating to tax with HMRC and considerable time spent by accountants and management trying to resolve these issues”. She concluded by upholding the dismissal for gross misconduct on grounds 1 and 3.[50]It is apparent that Ms Collignon was upholding the appeal in spite of not making any finding of dishonesty. It is agreed between the parties that it is not essential for there to be dishonesty for a reason related to conduct to be made out in relation to a dismissal.[51]I turn then to my conclusions. The first question that I have had to address is what was the reason for the dismissal, and this was the main, although not the exclusive, thrust of the Claimant’s case. Mr Singh (Counsel) argued that the disciplinary process conducted by Mr Lee was a sham in the sense that the decision to dismiss the Claimant had already been taken by Ms Chua, that she had her own reasons for that decision which did not relate to the Claimant’s conduct and that Mr Lee, it was to be inferred, had been charged with coming up with a legally better reason for dismissing the Claimant than the one that Ms Chua had in mind.[52]The Respondent’s case is that Mr Lee’s investigation and his reason for dismissing the Claimant were genuine and that this is one of those situations where the fact that the Respondent, or at least Ms Chua, had some pre-existing reason for wishing to dismiss the Claimant, does not detract from the genuineness of the actual reason in the event.[53]So far as Ms Collignon’s role is concerned, it is not suggested that she participated in any sham arrangement. Rather, it was said that if Mr Lee’s reason for dismissing the Claimant was a sham, then an appeal that found he had good grounds for dismissing for misconduct would not assist the Respondent as that was never the true reason. It seems to me as a matter of analysis that this would be a correct approach to the matter.[54]I reminded myself that under section 98(1) of the Employment Rights Act the burden is on the Respondent to prove the reason on which they rely. As Counsel observed, it is not unusual for a Claimant in an unfair dismissal complaint to challenge the Respondent’s reason for the dismissal. It is however unusual for a Respondent not only to have revealed an alternative reason for wishing to dismiss the Claimant, but also to have acted on it by dismissing him, and then seeking to retract that dismissal.[55]It also has to be said that in the respects that I have mentioned, I found parts of Ms Chua’s and Mr Singh’s evidence to be unreliable. This has caused me to give serious thought to the contention that the stated reason for Mr Lee’s decision to dismiss the Claimant was a sham. I have concluded, however, that I accept Mr Lee’s evidence about his reason for the dismissal and that the Respondent has discharged the burden of proving that reason.[56]Ultimately, I found Mr Lee to be a credible witness and the following points in his evidence assisted me in reaching that view:-56.1 He denied acting on instructions to dismiss the Claimant. That of course is not surprising, but further to this, when he was asked whether Ms Chua had told him that she had already dismissed the Claimant when he was asked to undertake the disciplinary process, he replied that she might have done that. It seemed to me that it might have been easier and perhaps seemed more convenient for Mr Lee to have denied that as well, but he did not.56.2 I asked Mr Lee whether he concluded that the Claimant was being dishonest in relation to the 2016 expenses and he confirmed that he did. When I then asked him whether he had put that to the Claimant, he replied without any attempt at evasion or prevarication that he did not. Again, it seemed to me that someone who was not being frank in the matter might have felt it easier or more convenient to either evade that issue, which might have seen to be a point against him, or to say that he thought that he had put that to the Claimant, thus giving an appearance of fairness on that point.56.3 I take the point that Ms Wookey made that Mr Lee did not find gross misconduct or serious misconduct on all four allegations, as he did not find it in relation to the second allegation; and she submitted that this suggested that this was a genuine process.56.4 I have thought about these matters, and they might, I suppose, be the product of a sophisticated attempt to lead me to the conclusion that I have actually reached about Mr Lee’s credibility. Ultimately I find that the unlikely, particularly in relation to Mr Lee’s responses in crossexamination and to questions from the Tribunal, and so ultimately I find that Mr Lee’s evidence about why he decided to dismiss the Claimant is reliable.[57]I therefore find that his reason and so the Respondent’s reason was the potentially fair one of a reason related to conduct.[58]Although, as I have said, that issue was the main focus of the hearing, I have to consider whether the Respondent acted reasonably or unreasonably in deciding to dismiss the Claimant for that reason. In that connection section 98 (4) of the Employment Rights Act 1996 states that the determination of the question of whether the dismissal is fair or unfair, having regard to the reason shown by the employer,(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonable or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.[59]The leading authority on a conduct based dismissal is British Homes Stores v Burchell [1980] ICR 303 which states that what is required is a genuine belief on reasonable grounds that the employee has committed the conduct concerned, a reasonable investigation, and that dismissal should be within the range of reasonable responses. In J Sainsbury PLC v Hitt [2003] ICR 111 the Court of Appeal confirmed that the test of reasonableness applies to all stages of the Burchell analysis.[60]I have reminded myself that I should look at the whole process, including the appeal, in assessing fairness and that it is not the case that a finding of gross misconduct automatically leads to it being reasonable to dismiss the employee; that question has to be considered on its own merits.[61]The position is that following the appeal, two out of the four allegations had been upheld and are therefore relied upon by the Respondent in this hearing, namely allegations 1, not providing the April, May and June 2015 statements and 3, incurring personal expenses and causing the Respondent to pay them, albeit not dishonestly, as found by Ms Collignon.[62]I find that the Respondent had a genuine belief based on reasonable grounds as regards both of these. On allegation 1, the accountants were saying that the Claimant had not provided the statements concerned. Although the Claimant was saying that he had, the accountants had continued to ask for them and there were clearly reasonable grounds for concluding that the Claimant had not provided them, and here I refer to what I have said earlier about the Claimant’s explanation.[63]On allegation 3, the Claimant accepted that he had done this in the circumstances that I have described.[64]The second element is whether there was a reasonable investigation. There was no specific procedural or other point taken in this regard, but I have considered the matter and it seems to me that there was a reasonable investigation. The Claimant was put on notice via the solicitors’ letter of the allegations that he had to meet. He had an opportunity to put forward what he wished to put forward in answer to them, and he had the opportunity to appeal. I am satisfied that the appeal was truly independent.[65]This leaves the remaining question as to whether dismissal was within the range of reasonable responses. The test here is whether no reasonable employer acting reasonably could have dismissed the Claimant in the circumstances. It is often said, but it is important to remind oneself, that the Tribunal must not be tempted to substitute anything that it might have thought would have been a preferable outcome for a decision made by an employer acting reasonably. I have nonetheless given this aspect of the matter also serious thought. There was not a strict management regime within the Respondent’s organisation and all involved regarded each other as friends as well as colleagues.[66]In upholding the decision to dismiss the Claimant, Ms Collignon did not make any finding of dishonesty, and the Claimant had not been given a plain warning that causing the company to pay his personal expenses and then endeavouring to sort it out subsequently would put him at risk of dismissal. It seemed to me on that point that the incorrect assertions that he was so warned in the grounds of resistance and in Ms Chua’s letter of 22 April 2016, might betray a perception on the Respondent’s side that their position would have been stronger if they had given a clear warning of that nature.[67]I consider that some employers faced with this situation would have stopped short of dismissing the Claimant and would have issued a clear final warning at this stage. However, I find that I cannot say that no reasonable employer would have decided to dismiss him, even if he believed that he had already given the April, May and June 2015 statements to the accountants. He knew that the accountants were still asking for them and he must have known that they wanted them in order to complete the reconciliation of the personal and business expenses, where there were some items said to be outstanding, and importantly to secure repayment of the personal expenses. Even if the accountants had lost statements previously provided, it is difficult to see why the Claimant could not have done as he did later and provided them with further copies.[68]Secondly, it is, I find, difficult to understand why the Claimant should have thought, if he did think it, that it was acceptable to pay the whole of his January to March 2016 credit card bill via the company. I agree with Ms Collignon that cash flow problems in the company did not amount to a good explanation, rather the reverse.[69]In cross-examination the Claimant said that from July to December 2015 he only settled business expenses via the company account, but reverted to paying the whole bill in March 2016, thinking that this was acceptable because he then had a positive balance in his director’s account. That is not something which was put to the Respondent during the disciplinary process, but again I find myself agreeing with the point made by Ms Collignon in the appeal findings that, following the 2015 reconciliation exercise, it should have been obvious to the Claimant that it was not acceptable to pay personal expenses with company money.[70]Therefore, although others might have taken a different view in the same circumstances, I find that dismissal was within the range of reasonable responses.[71]The effect of all of the above is that the complaint of unfair dismissal fails.