Mr Anthony Swann v Currie and Brown UK Ltd: 2208247/2017
EMPLOYMENT TRIBUNALS
Case No 2208247/2017
Between
Mr Anthony SwannClaimantCurrie and Brown UK LtdRespondent
Before
Judge:Date 15 March 2019
JUDGMENT
The Judgment of the Tribunal is that the Respondent did not unfairly dismiss the Claimant. The claims fail and are dismissed.
REASONS
[1]These are the Reasons for the Reserved Judgment in this matter, the Final Hearing having been listed for two days, the Bundle comprising 492 pages, and listing pressures on the second day of the Final Hearing resulting in an additional half day case being allocated to the Employment Judge.[2]By a Claim Form presented to the Employment Tribunal on 30 December 2017 the Claimant Anthony Swann, following unsuccessful Early Conciliation through ACAS, complains that he was unfairly dismissed by the Respondent, Currie and Brown UK Limited from his post as a Cost Consultant with effect from 1 November 2016, having transferred on that date under the TUPE Regulations from his former employing organisation, Sweett Group plc.[3]At the outset of the hearing the Respondent contended that this Final Hearing could not proceed in view of the TUPE elements of the claim as the hearing had been listed on a “Sit Alone” basis i.e the hearing to be conducted by an Employment Judge sitting alone without two non-legal Members.[4]The Tribunal considered the objection but ruled that challenge was misconceived in law, a combination of s.4 of the Employment (Industrial) Tribunals Act 1996, Reg 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and Part 10 of the Employment Rights Act 1996 providing that an Employment Judge may sit alone in certain circumstances including an the unfair dismissal claim on the grounds of capability, conduct or some other reason including the result of a transfer of an undertaking.[5]The Tribunal had before it extensive documentation helpfully prepared by the parties including a Bundle of Documents marked R1 comprising 492 pages, a Cast List and Chronology prepared by the Respondent written statements of those witnesses who appeared before the Tribunal, Lists of Issues in draft prepared by both parties, the Claimant’s Schedule of Loss and his Closing Submission. The Tribunal heard evidence from the following witnesses:(1) James Grinnell the Respondent’s Group People Director(2) Carl Bishop a Regional Managing Director with the Respondent(3) Alan Manuel the Respondent’s Chief Operating Officer(4) Anthony Swann the Claimant
THE ISSUES
[6]It is not in issue, i.e there is no dispute between the parties, that the Claimant was dismissed by the Respondent, that the Claimant is entitled in law to test the fairness of that dismissal before the Employment Tribunal, and that the Claimant was dismissed (fairly or unfairly) for a reason relating to his conduct, namely his conduct in sitting his Final Assessment with the Royal Institution of Chartered Surveyors (“RICS”) outside of strict rules prescribed by the Respondent in respect of their RICS training regime.[7]One issue which is in dispute between the parties and therefore falls for determination by the Tribunal, in terms of whether the Claimant’s dismissal was fair or unfair, is whether the Respondent acted reasonably or unreasonably in all the circumstances in treating the non-compliance with those rules as a dismissible defence, one of those circumstances being the relaxed training regime the Claimant had previously enjoyed, pre-transfer, with the Transferor organisation Sweett, and another issue being the inherent reasonableness or otherwise of the instruction.[8]The second central issue is whether the imposition of the Respondent’s training regime, at the root of the alleged gross misconduct, constituted a purported variation of the Claimant’s contract of employment which, if the sole or principal reason for the variation was the TUPE transfer, would be void in law.[9]A further issue is whether the dismissal process was ever capable of being a fair one given the Respondent CEO’s announcement prior to the commencement of any disciplinary proceedings that he would dismiss the Claimant, and the Group People Director’s confirmation to the CEO that the Claimant would be dismissed but only after a disciplinary process had been followed.
THE FACTS
[10]The Claimant has worked in the quantity surveying sector for many years, initially from 2008 with Turner and Townsend, joining the Sweett Group plc as a cost consultant from the autumn of 2014, and aspiring, creditably, to qualify ultimately as a Chartered Surveyor with RICS. Sweett’s handbook is at pages 39 to 92.[11]The Claimant’s employment transferred under the TUPE Regulations to the Respondent, Currie and Brown UK Limited on 1 November 2016, under Sweett’s conditions of service, by virtue of TUPE. The Claimant’s contract of employment with Sweett is at pages 93 to 97.[12]The Respondent, a subsidiary of an International Holding Company, is an asset management and construction consultancy whose services include the provision of cost guidance to clients on multi-million pound projects. Accordingly, it employs Cost Consultants, including Chartered Surveyors, and deploys them on their clients’ projects.[13]Expressed in non-technical terms the costs-consultancy function includes managing building and civil engineering project-costs from the initial calculations through to final sign-off. A key objective is to control and minimise the cost of a project, enhancing value for money for the client whilst ensuring that the construction delivers the required standard and quality.[14]The Respondent’s client-portfolio includes high profile organisations. Accordingly, its work includes high profile asset management and construction projects.[15]The Respondent, seeking to differentiate its business from its competitors on the basis of quality, presents itself within a global marketplace as a source of technical excellence and service at the top-end of the service-delivery spectrum. Attractive service-delivery promises of that kind to clients and prospective clients reinforces an organisation’s valueproposition but fulfilling assertions of excellence requires exceptionally high organisational standards and discipline.[16]Those organisations achieving excellence command premium fees, win contracts against competitors tendering at a lower price, and secure repeat business. Technical excellence results in fewer errors which lowers operating costs e.g liability-indemnity insurance premiums and resources engaged in claims-management.[17]Unsurprisingly, as different organisations have different cultures, the Respondent embarked post-TUPE on a process of integration and harmonisation of those areas not sacrosanct under TUPE.[18]On 4 July 2017 the Respondent commenced gross misconduct disciplinary proceedings in respect of the Claimant related to the RICS qualification process and dismissed him summarily on 31 July 2017. The Claimant’s appeal against that dismissal was rejected on 17 August 2017.[19]The disciplinary hearing was chaired by Carl Bishop, one of the Respondent’s Regional Managing Directors and himself an ex-Sweett senior manager. The Respondent’s decision to dismiss the Claimant was taken on its behalf by Mr Bishop on the basis of the following facts and matters within Mr Bishop’s existing knowledge or acquired through the disciplinary investigation and hearing processes.[20]The training regimes within the Respondent and within Sweett to achieve the Chartered Surveyors qualification were different.[21]The route to qualifying as a Chartered Surveyor includes a Programme called the Assessment of Professional Competence (APC).[22]Sweett’s approach to professional development and qualification for its surveying staff was reasonably relaxed with little being prescriptive within their APC Programme, although necessarily incorporating RICS core competencies through which trainees were guided by a supervisor.[23]The Claimant commenced studying on the APC programme in October 2014.[24]Qualifying as a professional practitioner in any field is a demanding process requiring dedication to that goal. Combining a full-time job with that training process requires exceptional levels of commitment and discipline and freedom from disrupting interference by other personal or work priorities.[25]As at the transfer date on 1 November 2016 the Claimant considered his studies to be going well in readiness for his Final Assessment by RICS in November 2016.[26]The Respondent’s training regime (it’s APC Programme/current rules are at pages 98 to 102) is highly structured and managed, designed for success at a 100% level, the prospects of achieving an 100% record being in part facilitated, and prescriptively so, by an invariable filtering process conducted ultimately by the Board of the Respondent’s Holding Company, Currie and Brown International limited, (the Holdings Board), exercising a moderating function internationally to achieve consistency on standards, such that no candidate on the APC Programme is permitted to sit the RICS Final Assessment without successfully completing a “readiness-interview” and then obtaining the Holding Board’s approval.[27]The 100% target is both an expression of trainee-support, efficiency and pride, but also a metric used by the Respondent in sales and marketing a global brand predicated on excellence.[28]The Respondent arranged a welcome-meeting for Sweett employees on 6 September 2016 – the notes are at pages 97A to 97H - and an introductory meeting to discuss the APC Programme, referred to at pages 155 to 157 which includes an email from the client confirming that he would attend.[29]At that pre-transfer welcome-meeting on 6 September 2016 at the Respondent’s Grays Inn Road offices, the Respondent’s CEO, Euan McEwan informed the Sweett workforce on the Sweett APC Programme that they could continue temporarily with the Sweett Programme and take their RICS final assessments in November without switching immediately onto the Respondent’s APC training regime. Mr McEwan informed the trainees that in the event of any of them failing their November assessments but wishing to continue with their studies, it would be obligatory to enter the Respondent’s 2017 APC Programme, commencing in January for the November 2017 RICS assessment and described the rigours of the Respondent’s training Programme (a “very strict” and “nonnegotiable” Programme to quote the Group People Director’s evidence (James Grinnell) to the Tribunal, as are the following phrases in quotation marks), emphasising that the Respondent’s training Programme was the only route permitted by the Respondent to gaining the RICS professional qualification.[30]When the meeting invited questions from the floor, challenges to the inflexibility of the Programme were treated robustly by Aileen McEwan, Group Marketing and Communications Director.[31]The Respondent’s APC Programme was viewed by the Sweett workforce as Draconian, as acknowledged by Mr Grinnell in evidence.[32]Understandably, there was “shock” and “uproar” amongst some present when it was stated bluntly that any employee wanting to qualify as a Chartered Surveyor through a different “do as they wished” route, i.e not through the Respondent’s APC Programme, would have to leave the Company in order to acquire Chartered Surveyor status by such other means.[33]The Respondent does not require its cost consultants to become qualified Chartered Surveyors, nor did Sweett.[34]The Respondent’s regime differed from Sweett’s training policy in three major respects.[35]Firstly, Sweett were not prescriptive about acquiring qualification exclusively through Sweett’s APC Programme. The Respondent was inflexible in this respect. All the Respondent’s Chartered Surveyors are either recruited with that professional status or are otherwise “home-grown”.[36]Secondly the Respondent required daily homework by those on the Programme by answering three written questions per day, with encouragement to answer up to 5 questions per day, and with reference to some trainees answering up to 10 questions a day, with additional intensive evening and weekend studying. The programme includes full-day courses run by the Respondent’s external coach, Alpesh Patel Global Master APC Coach, on specific APC competences, fortnightly 1:1 telephone support with an external coach, quarterly assessments, further 1:1 support and mock interviews in the run-up to the final assessment.[37]Finally, a rigid rule preventing an employee from applying to RICS for their final assessment at the conclusion of the APC Programme without the Respondent’s approval, only obtainable by surmounting two hurdles i.e sitting a readiness interview set by the Respondent and secondly, obtaining permission in writing from the Holdings Board to submit their application to the RICS.[38]Correspondingly, the training and support was at the highest level, including paid time-off work for final preparation for sitting the RICS Assessment once Holding Board approval had been granted.[39]It is evident that the Respondent’s Programme, involving an investment of £8,000 in each trainee, is an invaluable asset for those with ambitions to qualify professionally but it’s demanding regime requires an individual’s personal circumstances, (including their availability to study during evenings and weekends, their health, their stamina and discipline), to match the demanding pace of the Programme and exploit the resource the Programme represents.[40]On 23 September 2016 Respondent sent an email to Sweett employees stating that staying on the Sweett APC Programme, rather than joining the Respondent’s APC Programme after the transfer would not be an available option, at pages 160 to 161[41]On 31 October 2016 the Respondent emailed the Sweett employees regarding the application of the Respondent policies to them, at pages 168 to 170.[42]The TUPE transfer of the Sweett business undertaking, and its workforce, occurred on 1 November 2016. The Claimant did not opt-out of the transfer and accordingly became an employee of the Respondent on that date.[43]The Claimant sat the RICS Final Assessment in November 2016 but, unfortunately, was unsuccessful. He decided to re-sit the Final Assessment in June 2017.[44]On 7 December 2016 the Claimant and two other APC candidates attended a Skype conference call with Aileen McEwan, referred to at pages 250 and 421. It is unclear whether the Claimant was present throughout the entirety of that call.[45]With effect from January 2017 the Claimant entered the Respondent’s APC Programme aware of the rigours and rules of the Programme within the context of the communications during 2016 and Aileen McEwan having sent Claimant a copy of the APC Programme on 3 January 2017, at pages 251 to 256. The Claimant received the induction materials, at pages 174 to 246 and a further copy of the Programme, at pages 178 to 182, the following day, 4 January 2017.[46]On 25 January 2017 Alpesh Patel sent the Claimant a further copy of the Programme setting out the approval process, at page 267.[47]On 31 January 2017 the Claimant undertook the Respondent’s readiness-interview, mandatory under its training rules, but failed it. The Claimant was advised to prepare himself as if he were a fresh candidate starting at the outset of the Programme, at page 117.[48]On 2 February 2017 the Claimant attended the Respondent’s APC Programme induction course, at pages 257 and 268.[49]During the course of the early part of 2017 the HR Department heard on the grapevine that certain identified employees, not including the Claimant, TUPE’d across in November 2016 from Sweett, were considering breaking the rules by sitting their Final Assessments outside of the APC Programme i.e without undertaking a readiness interview and without obtaining Holdings Board approval.[50]James Grinnell phoned each of those employees informing them that their employment would be terminated if they did.[51]Some continued on the Programme, keeping within the rules. Some decided to come off the Programme but to stay employed with the Respondent. Some sought and were granted discretionary dispensations related to their personal circumstances (e.g health reasons or simply because they were not coping) such dispensations including temporary breaks from the Programme or allowing more “diary time” by relaxing the obligation to answer a minimum of three questions a day. Some spoke of the option of leaving the Respondent’s employment and studying within a different environment.[52]Rumours then began circulating that a member of David Hobbs’ team intended to apply to the RICS to take a Final Assessment without going through the Respondent’s readiness-interview nor obtaining the Holdings Board approval. Mr Hobbs was a senior director and the Claimant’s line manager.[53]On 16 March 2017 Mr Hobbs enquired about the consequences for an employee independently sitting the Final Assessment outside of the APC Programme - page 279. The Respondent’s reply was that it would be a disciplinary offence.[54]On or around the end of March 2017 the Claimant presented his Final Assessment submission to RICS, at pages 286-374. The Respondent was unaware that he had done so.[55]At the beginning of April the Claimant decided to withdraw from the APC Programme, having experienced a number of significant and well documented personal and health issues during 2016 and 2017 which interfered with the attention he could give his studies.[56]In an email from the Claimant dated 6 April 2017 to Aileen McEwan, and copied to others, and headed by the Claimant Withdrawal from APC Programme, the Claimant wrote: Dear Aileen, Unfortunately, following some recent health issues, I am unable to keep pace with the APC training Programme. I am currently still undergoing tests and reviews to get to the source of the problem and the necessary treatment. Although, I find the Programme very helpful I will not be able to commit to the required time. Regards Tony Swann Cost Consultant[57]The following day Aileen McEwan replied expressing sympathy with the Claimant’s health issues and welcoming him to re-join the Programme whenever he was able to, at page 280.[58]Aileen McEwan was unaware that the Claimant had applied on his own account to RICS to re-sit his Final Assessment in June 2017.[59]As it transpired the Claimant never disclosed to the Respondent that application at the time of application or subsequently.[60]The Claimant was aware that the Respondent permitted paid time-off for final preparation for the RICS Final Assessment. The Claimant did not apply for paid time-off.[61]The Claimant left blank the name of the Respondent when he completed the “Employer’s Details” section of the Final Assessment application form to the RICS.[62]The Claimant failed the June 2017 Final Assessment.[63]On 26 June 2017 RICS notified the Respondent that the Claimant had undertaken that RICS Final Assessment - page 398.[64]On 3 July 2017, James Grinnell, in his capacity as Group People Director, received an email from the CEO in which the CEO stated that he understood from the RICS that the Claimant had been through an RICS Final Assessment in June and stated “as he did so without Holdings Board approval I intend to dismiss him” at page 405.[65]For any audience versed in notions of natural justice, fair treatment and fair processes within the workplace, and basic fair-dismissal principles enshrined for multiple decades in employment law and ACAS Codes, “I intend to dismiss him” makes uncomfortable reading.[66]That discomfort, in terms of an expectation that an organisation aspiring to world-class standards would act lawfully in its treatment of its staff, is compounded by the response of the Group People Director.[67]The opportunity was missed to neutralise the shortcomings of the CEO’s email by a polite but courageously professional reminder to the CEO that any alleged (the Tribunal’s emphasis) misconduct issues would be addressed, with propriety and compliance, through due process, namely the Respondent’s Disciplinary Procedure, a procedure from which the CEO had, at a stroke, disqualified himself.[68]It is difficult not to read the following response, at page 410 from the Group People Director as anything other than an express confirmation, telling the CEO what the CEO would want to be told, i.e that the Claimant would be dismissed, but only after the respectable camouflage of a formal process to deal with the litigation risk. The reply to the CEO was copied to a number of individuals including, the Tribunal observes, Alan Manuel, who ultimately was to Chair the Claimant’s appeal against his dismissal.[69]The opening two paragraphs are as follows: Thanks for this Euan, this is most frustrating. I understood Tony had dropped out of the programme due to “ill health”? If you are comfortable we will follow the usual process in such instances, to reduce any litigation risk. This would involve us writing to him immediately and inviting him to a disciplinary hearing at the end of this week. We would at this meeting allow him a right of representation, and would also ask him to put forward any arguments. We would reflect on this meeting, and come to the dismissal outcome the same day…….. [Emphasis added by the Tribunal][70]James Grinnell arranged for enquiries to be made of the Claimant. An HR advisor in his team received confirmation from the Claimant himself that he had undertaken the June RICS Final Assessment.[71]The same day the Claimant saw his GP and was signed off as unfit for work until 18 July 2017.[72]On 4 July 2017 Carl Bishop wrote to the Claimant requiring his attendance at a disciplinary hearing on 6 July 2017, at pages 429 to 430.[73]On 6 July 2017 Claimant emailed Mr Bishop with a statement for consideration at the disciplinary hearing, at pages 436 to 438. The central thrust of that email was that the Claimant’s studies had been disrupted by serious health issues, that he was unaware that he was unable to take the RICS qualification process outside of the APC Programme, and unaware that it would be a disciplinary offence to do so, commenting that he had considered leaving the Respondent’s employment in order to obtain chartered status.[74]The disciplinary hearing, re-arranged for 28 July 2017, was chaired by Mr Bishop and the Respondent supplied the Claimant with the investigation report and other documentation, at pages 455 to 458.[75]The Claimant was accompanied by a colleague-companion. Mr Bishop was accompanied by a colleagues from HR and a notetaker. The notes are at pages 471 to 476, and are not materially disputed by the Claimant. The Claimant accepted that he had undertaken the RICS Final Assessment in June 2017, had not successfully passed the readiness interview, had not obtained Holdings Board consent to sit the Final Assessment, had not informed the Respondent that he was sitting the Final Assessment, and had not disclosed the Respondent as his employer on his Application to the RICS to sit the Final Assessment.[76]The Claimant’s position was that he had never been instructed that he could not take the Final Assessment without passing the readiness interview and obtaining Holdings Board consent and was unaware of any such restrictions. Mr Bishop adjourned his decisionmaking, made further appropriate enquiries, deliberated, concluded that he did not believe the Claimant, that the Claimant had knowingly breached the Respondent’s instructions to its trainees, that the instruction was a reasonable one in terms of its business objective, that acting in breach of the instruction constituted gross misconduct, and that the instant dismissal was the appropriate and proportionate disciplinary sanction.[77]On 31 July 2017, Carl Bishop wrote to the Claimant advising the Claimant that Mr Bishop had reached a finding of gross misconduct, based on the contravention of management instructions not to sit the Final Assessment without successfully completing a readiness interview and obtaining Holdings Board approval. Mr Bishop imposed the sanction of summary dismissal. That letter is at pages 462 to 464.[78]In the penultimate paragraph of Mr Bishop’s witness statement he sought to introduce issues of honesty and breach of the Claimant’s obligations to preserve trust and confidence within his relationship with the Respondent causing an irreversible relationship breakdown.[79]By email dated 7 August 2017 the Claimant lodged an appeal based on four grounds. His appeal letter is at pages 467-469.[80]Alan Manuel, the Respondent’s Chief Operating Officer responsible for UK and Europe, and an ex-Sweett senior member of staff, chaired the Claimant’s appeal hearing on 14 August 2017.[81]Each of the Claimant’s four grounds of appeal were considered.[82]Those grounds of appeal are set out in Mr Manuel’s decision letter dated 17 August 2017 at pages 488 to 492, a five page communication in which Mr Manuel took considerable care to address the exploration of each of those issues within the appeal hearing and the conclusions reached by him.[83]He concluded that although the Claimant’s health issues explained the impracticality of meeting the rigours of the Respondent’s training programme they did not mitigate a deliberate disobedience of the instruction regarding the readiness interview and Holdings Board approval.[84]The Claimant’s concerns regarding inadequate investigation into the issues resulted in Mr Manuel adjourning his decision on the Appeal and undertaking further appropriate enquiries before reaching his decision on the merits of the Appeal. Mr Manuel also established from the Claimant that, having failed the Final Assessment in November 2016, the Claimant had always intended to re-sit his Final Assessment in June 2017.[85]Alan Manuel concluded that the grounds of appeal were not well founded and dismissed the Appeal by his letter dated 17 August 2017.[86]Mandatory pre-Tribunal ACAS Early Conciliation between 30 October and 30 November 2017 failed to resolve the dispute.[87]On 30 December 2017 the Claimant presented his Claim Form to the Employment Tribunal alleging that his dismissal by the Respondent was unfair.[88]THE LAW The Employment Tribunal’s function is to procure and conduct fair hearings resulting in just outcomes. It does so by applying the relevant principles of employment law to its findings of fact in respect of workplace related claims within its jurisdiction. In doing so the Tribunal seeks to fulfil the Overriding Objective set out in Rule 2. The applicable principles of law, concisely identified as required by Rule 62(5) of Schedule I of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, are as follows, acknowledging that it is the statutory text which must be applied in reaching a judgment whilst having regard to the clarification and guidance on that text available to the Tribunal through the reported Decisions of the Higher Courts. The Employment Rights Act 1996 protects employees with sufficient qualifying service against being unfairly dismissed. The employer must establish to the Tribunal’s satisfaction its reason for the dismissal and is one of the recognised grounds of dismissal which may render a dismissal fair. Having established a potentially fair reason for dismissal the Tribunal must be satisfied that the employer acted reasonably in dismissing the employee in all the circumstances of the case including the dismissal process followed by the employer. Regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended, provides that: Subject to regulation 9, any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the sole or principal reason to the variation is the transfer. Regulation 9 relates to insolvency situations of no relevance to these proceedings. The reference to “paragraph (1)” in Regulation 4(4) above is to Regulation (1) the effect of which is, at the risk of oversimplification, to make sacrosanct the contractual terms and conditions of employees transferring from their existing employer (the Transferor) under the TUPE regulations to a new employer (the Transferee), preserving in most circumstances their contractual rights and obligations intact with the new employer. Regulation 7(1) provides that: Where ……..after a relevant transfer , any employee of the transferor or transferee is dismissed, that employee is to be treated for the purposes of Part 10 of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for the dismissal is the transfer. In determining whether the employer acted reasonably or unreasonably the evidential burden is neutral. It is not for the Tribunal to decide whether or not it would have dismissed the Claimant in all the circumstances. The function of the Tribunal is to address and answer the question raised by s.98(4) of the Act bearing in mind, consistently with the decision in Iceland Frozen Foods Limited v Jones [1982] IRLR 439 EAT that such managerial decisions are not mathematical and that a reasonable employer will normally have a range of reasonable responses to the situation before the employer. Provided the sanction of dismissal is a response which would be open to a reasonable employer in the circumstances, applying the requirements of s.98(4) of the Act, the Tribunal should accept that response as fair and not substitute its own judgment as to how it would have responded to such circumstances. Guidance is available to Employment Tribunals in the decision of the EAT in British Home Stores Limited v Burchell [1978] IRLR 379 on how to approach a case where an employee is dismissed, not because they have admitted an act of misconduct or have been caught red-handed, but, relying on the available evidence, they believe the employee has committed an act of misconduct. The Burchell case is authority for the proposition that where an employee is dismissed because the employer suspects or believes that the employee has committed an act of misconduct, an Employment Tribunal has to decide in determining whether that dismissal was unfair, whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee’s misconduct at that time. This involves three elements. Firstly, it must be established by the employer the fact of that belief; that the employer did believe it. Secondly, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, the employer, at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case. Accordingly, an honest belief alone is not sufficient to justify a dismissal. The Burchell test is an expression of what constitutes “acting reasonably” for the purposes of s.98(4) and ultimately a Tribunal must determine whether or not a dismissal is fair by reference to the statutory test in s.98(4) of the Act. BREACH OF CONTRACT The starting point for the Tribunal is to identify the intention of the parties to the contract and to require the parties to honour the enforceable obligations they intended to create in the event of a dispute which comes before a Court of Law. The burden of proof in a contract claim is on the Claimant i.e to succeed the Claimant must establish the merits of their claim and meet the standard of proof. That standard in a contract claim is to establish the facts underpinning the merits of the claim on the balance of probabilities.[89]SUBMISSIONS Submissions on behalf of the Claimant The Claimant’s submissions were in writing. Submissions on behalf of the Respondent Addressing the TUPE point the APC programmes in both organisations were non-contractual. Regulation 4 (4) is not engaged. The Claimant’s contract is silent on the point – page 93 The Claimant agreed that neither organisation required cost consultants to undertake the APC Programme Section 2 of the Handbook at page 45 clearly permits unilateral variations by the Respondent to non-contractual arrangements within the organisation. Page 44 makes it clear that training is not contractual. Sweett were disappointed with their training results and were envisaging changes, only 12 out of 21 candidates passed the RICS Final assessment in 2016 The Claimant confirmed that he signed up to the Respondent’s APC Programme voluntarily and said it was a positive scheme. Turning to the unfair dismissal issues the reason the Respondent dismissed the Claimant was conduct, the Claimant’s refusal to follow a reasonable instruction, by entering the June 2017 RICS Final Assessment outside the rules of the Respondent’s APC Programme. Burchell principles apply. The Claimant had full knowledge of the strict regime, knew that his colleague James was told that he would have to leave to train outside of the Respondent’s programme, knew that colleagues were leaving in order to do the APC programme at their own pace and page 437 records the Claimant saying that he considered leaving the Respondent’s programme in order to do the course at his own pace. There were reasonable grounds for the Respondent’s belief that the Claimant had refused to follow a reasonable instruction. The rules had been repeatedly sent out and the Claimant said there was widespread discontent with them and said that people were asking if there were ways around the inflexibility and it was very much “the talk of the office” The Claimant’s assertion that there were ambiguities about the rigidity the scheme are not credible. The Claimant could have checked but didn’t and it was unreasonable of him not to seek any clarifications required. There were valid business grounds for the rigour of the scheme. Allowances were made for the transferring workforce for the end of 2016. Mr Patel made it clear to the Claimant that he needed more training. The Claimant’s subsequent failure of his readiness-interview validated Mr Patel’s conclusion. It became apparent at the appeal stage that the Claimant always intended to submit for the Final Assessment in June in spite of starting afresh the Respondent’s training course with the respondent while still undertaking the Respondent’s APC programme, a matter which Alan Manuel became aware of during the appeal although that was not a factor known to Carl Bishop when the original decision to dismiss was taken. There were inconsistencies in the Claimant’s account at the appeal stage and inconsistencies in his evidence to the Tribunal, the Claimant stating that he had hadn’t involved colleagues when there are emails which contradict that, as the Claimant then accepted. Those are issues relevant to credibility. As far as the thoroughness of the investigation is concerned, James Grinnell was criticised for not having gone back to check with Aileen McEwan and failing to check out the health issues. However the health issues had no relevance nor impact on any of the disciplinary matters. In terms of the range-of-responses factor, the Respondent was entitled to bring into account reputational issues, the fact that the Claimant had tried to circumvent the policy, the element of deception and therefore the trust and confidence issue, and the fact that the Claimant’s health issues were irrelevant, although Alan Manuel looked into those considerations sympathetically at the appeal stage. If the Tribunal finds that the Claimant was unfairly dismissed, Polkey considerations will apply.[90]CONCLUSIONS(1) The Tribunal reaches the following conclusions by applying the relevant principles of law to its findings of fact.(2) The Tribunal is not satisfied that the Claimant’s training arrangements with the Sweett Group plc were contractual. No evidential material has been placed before the Tribunal expressly establishing a contractual arrangements regarding Sweett’s APC Programme nor are the limited circumstances in which contractual rights can be implied satisfied in the circumstances of this case.(3) Therefore Regulation 4 of the TUPE regulations is not engaged to preserve the Sweett training regime as a contractual right of the Claimant which survived the TUPE transfer and was therefore enforceable against the Respondent.(4) Accordingly, the contention that exercising a contractual right cannot amount to misconduct, minor or gross, rendering the Claimant’s dismissal unfair on that ground alone, is not available to the Claimant.(5) The Tribunal is satisfied that by the conclusion of the disciplinary hearing process Mr Bishop genuinely believed that the Claimant had reached and implemented a decision to sit the RICS Final Assessment in June 2017 knowing that he, the Claimant, would be breaching an instruction to him and his colleagues not to sit an RICS Final Assessment unless two pre-conditions had been satisfied, passing the readiness-interview for the Final Assessment and then obtaining Holdings Board approval to sit the Final Assessment.(6) The Tribunal is satisfied that Mr Bishop based that belief on the grounds set out in his decision letter to the Claimant, that those were reasonable considerations for a Chair of a Disciplinary Hearing to take into account, and that those considerations were more than adequate to found the belief in the mind of a fair employer that the Claimant knowingly and deliberately ignored the Respondent’s conditions for sitting the Final Assessment.(7) The Tribunal is also satisfied that the Claimant had carried out as much investigation into the issues as was reasonable in all the circumstances of the case.(8) The Tribunal’s records that it is satisfied that Mr Bishop approached his task as Chair of the Disciplinary Hearing, as did Mr Manuel in relation to the Appeal Hearing, with integrity and independence and were not simply undertaking a sham process acting “under orders” from the CEO.(9) Accordingly, the Tribunal finds that the reason for the Respondent’s dismissal of the Claimant related to the conduct of the Claimant, the Respondent genuinely believing, on reasonable grounds, that the Claimant had knowingly and intentionally failed to comply with a clear and unequivocal instruction regarding the Final Assessment process, that belief having been formed after a reasonable enquiry and investigation into the issues, including the arguments advanced by the Claimant as to why his conduct was innocent and free from blame.(10) Although, evidently, the dismissal took place within the wider context of a transfer under the TUPE Regulations, the sole reason for the Respondent dismissing the Claimant was his conduct, not the transfer of the Claimant’s employment from the Sweett Group to the Respondent. The Claimant’s dismissal was not automatically unfair under Regulation 7 of the Regulations.(11) The Tribunal then widens its consideration of the question of whether the dismissal was fair or unfair, having regard to the Respondent’s reason for dismissing the Claimant and the range of circumstances bearing on the question of whether or not the Respondent acted reasonably, or acted unreasonably, in treating the Claimant’s conduct as a sufficient reason for dismissing him.(12) On the facts of this case, the size and the administrative resources of the Respondent’s undertaking have no material significance or bearing.(13) The Tribunal has considered the Respondent’s policy of imposing on its staff one single and exclusive route to professional qualification, through a demanding and rigorous regime under an intensive training programme and the imposition of mandatory hurdles to be surmounted before a member of staff can sit their RICS Final Assessment, and specifically whether the two mandatory hurdles of successfully completing the readinessinterview and obtaining Holdings Board consent amounted to a reasonable instruction [emphasis added by the Tribunal](14) That is not a question which instantly answers itself one way or the other. After careful consideration the Tribunal is satisfied that the general proposition that it is opened to an organisation to set the benchmark for its own internal standards and to establish systems to manage and maintain them, has not been breached by the Respondent. The Respondent’s business case for maximising its prospects of a 100% pass rate is within the range of legitimate and reasonable one. The Respondent is operating at the upper limit of the spectrum of reasonableness in that respect but nevertheless, the Tribunal concludes, within that upper limit.(15) Another circumstance the Tribunal has considered is the disadvantage a professional trainee suffers in transferring, automatically in law, from a transferor organisation with relaxed training arrangements into another organisation with a stricter regime and a regime with which the trainee cannot comply. Again, the Tribunal is sympathetic with the Claimant and his experience. The Tribunal notes that the Respondent provided a transitional period for the November 2016 Final Assessment, only requiring its own training structures to apply from the beginning of 2017, and had a range of discretionary mechanisms available to support those struggling temporarily with the demands of their training arrangements. The Tribunal concludes that the transition by reason of TUPE from a relaxed to a rigid system was not a circumstances rendering it unreasonable for an employer in the Respondent’s circumstances to treat the Claimant’s conduct as a sufficient reason for dismissing him.(16) The Tribunal has had regard generally to principles of fairness and equity and reviewed not only the granular detail of the Respondent’s action in dismissing the Claimant in those circumstances but more generally the substantial merits of the case.(17) The Tribunal’s determination is that in all circumstances case, including the processes followed, (investigation, disciplinary hearing, and the appeal, the Tribunal identifying no material shortcomings in the process undertaken by Mr Bishop and Mr Manuel) the Respondent acted reasonably in treating the Claimant’s conduct in sitting the RICS Final Assessment in June 2017 in contravention of the instruction not to do so without passing the readiness interview and obtaining Holdings Board approval, as a sufficient reason for dismissing the Claimant, the Tribunal being satisfied that dismissing an employee on conduct grounds is a fair option within the range of reasonable options available to an employer faced with the circumstances of this case.(18) The Judgment of the Tribunal is that the Respondent did not unfairly dismiss the Claimant. The claims fail and are dismissed. Postscript(19) The Tribunal, having noted critically the exchange of emails between the CEO and the Group People Director on 3 July 2017, acknowledges that those Senior Officers of Respondent, and their lawyers, nevertheless acted with propriety and in accordance with their duty to the Court in disclosing that email string to the Claimant resulting in them being placed before the Tribunal. The obligation to disclose all the evidence held by a party whether it is helpful or damaging to their case exists for the purpose of achieving justice through the court establishing the true facts. The option of concealing or shredding evidence such as those emails which have a bearing on the material facts, i.e those which are relevant and significant to the issues which will decide the case one way or the other, may be a temptation but concealment is a redline not to be crossed by parties or their lawyers. By placing the duty to the Court above self-interest and litigation-risk the Respondent and their lawyers have acted with propriety.