Employment Judge KenwardIn person for claimantMs Niaz-Dickinson (instructed by Counsel) for respondentDate 16 January 2025
JUDGMENT
The following complaints are not well-founded and are dismissed:(1) the complaint of unfair dismissal contrary to Employment Rights Act 1996 sections 98 and 111;(2) the complaint of wrongful dismissal / breach of contract as to notice and / or notice pay;(3) the complaint of direct race discrimination contrary to Equality Act 2010 section 13;(4) the complaint of direct age discrimination contrary to Equality Act 2010 section 13.
REASONS
[1]The Claimant was employed by the Respondent from 17 July 2012 until 24 August 2022. He worked as a Customer Service Engineer. He was dismissed on the grounds of gross misconduct. Essentially, the alleged misconduct was that he had used a ladder without using a harness (which was part of a safety system, referred to as “Tetra”, which had been introduced) and in doing this he had failed to comply with requirements to this effect. He brings a case of unfair, wrongful and discriminatory dismissal. Background and proceedings[2]Early conciliation commenced through notification being given to ACAS on 14 September 2022. The early conciliation certificate was issued on 19 October 2022. The ET1 Form of Claim was received by the Tribunal on 1 November 2022.[3]A preliminary hearing took place on 5 January 2023 before Employment Judge Spencer for the purposes of making case management directions and identifying the issues to be determined by the Tribunal. The resultant Case Management Order listed the case for a final hearing to take place on four days from 19 September 2023.[4]At the end of the final hearing on 22 September 2023, the Tribunal reserved its decision as there was insufficient time for deliberation. The case was further listed for deliberation to take place in chambers on 1 December 2023.[5]I apologise for the delay in providing the Judgment and these written reasons which has been caused by pressure of work.
Issues
[6]At section 8.1 of the ET1 Form of Claim the Claimant ticked the applicable boxes to indicate that he was bringing complaints of unfair dismissal, age discrimination, race discrimination, as well as claiming that he was owed notice pay.[7]In setting out the details of his complaints, the Claimant was contending that his dismissal was substantively unfair. Essentially, he was seeking to argue that he was not guilty of the allegations of misconduct or that any culpability on his part was not so serious as to merit dismissal. He was contending that the sanction of dismissal was too harsh as dismissal should have been a last resort.[8]Clearly on this basis, whether as a result of there being no misconduct, or any conduct not amounting to gross misconduct, the Claimant was also contending that he was dismissed in breach of his right to notice so that he was seeking notice pay in relation to the notice period to which he would have been entitled. In this sense, he was contending that his dismissal amounted to a wrongful dismissal.[9]The Claimant was also claiming that “I have reluctantly concluded that have been the subject of discrimination of age/race”. For the purposes of his race discrimination complaint, the Claimant describes himself as of Asian origin and he compares his treatment to the treatment received by those not of Asian origin. In relation to his complaint of age discrimination, the Claimant compares his age group (those over 60 years of age) to those of younger age group (those under 40 use of age).[10]The Claimant made reference to occasions where issues have been raised regarding his age or comments had been made to him. He also referred to having been overlooked, on more than one occasion, for promotion to the position of Fibre Engineer in contrast to “other young black ethnic colleagues”. He stated that it was “quite clear the company wants older staff out new in”.[11]The various complaints were denied in the Grounds of Resistance of the Respondent. Essentially, the Respondent’s case was the Claimant had been fairly dismissed on the grounds of gross misconduct. In the alternative, the Respondent dismissed the Claimant for some other substantial reason due to a serious breakdown in trust and confidence resulting from the Claimant’s actions. It was asserted that neither the Claimant’s age nor race had been a factor in his dismissal.[12]Prior to the preliminary hearing, the Claimant provided a document which was described as being an amendment to his Claim and another document which itemised five grounds of complaint. At the preliminary hearing, the Tribunal ordered that the document seeking to amend his Claimant would be treated as further particulars of his complaint of an unfair and discriminatory dismissal. This document essentially set out the Claimant’s version of events in relation to his alleged conduct on 13 June 2022 and the subsequent investigation. The document listing five grounds of complaint essentially made reference to an alleged lack of training or advice or assistance being provided on the day of the incident, as well as referring to not having been given an opportunity to sign or agree the notes of the investigatory meeting. It was also contended that the Respondent had failed to consider the alternative sanction of a warning prior to dismissing the Claimant.[13]At the preliminary hearing, it was further clarified that the matters raised by the Claimant as to alleged occasions where issues had been raised regarding his age or comments had been made to him, or in relation to being overlooked for promotion, did not amount to separate complaints of discrimination, but were put forward as evidence in support of his complaint that his dismissal amounted to direct discrimination on the grounds of race and / or age.[14]At the start of the final hearing, it was agreed that the Tribunal would deal with liability issues first but, at the same time as considering liability issues would also consider the issues set out below, in so far as they arose.(1) Did the Respondent or the Claimant unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures?(2) In the event that the dismissal was found to be unfair, is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?(3) If the Claimant was unfairly dismissed, did he cause or contribute to his dismissal by blameworthy conduct and if so, would it be just and equitable to reduce the Claimant’s compensatory award and should there be any reduction to the basic award?
Evidence
[15]Prior to the hearing, the Tribunal had been provided with a file of documents amounting to 323 pages as well as witness statement from the Claimant and from the Respondent’s witnesses. Some additional documents were produced, after discussion with the parties, at the start of the hearing or during the course of the hearing. The Tribunal heard oral evidence from the Claimant and from Mr Michael Bonitto, who conducted the initial investigatory interview, Mr Adam Hodgkiss, who conducted the disciplinary hearing and made the decision to dismiss, and Mr David Kelly who conducted the appeal hearing.
Findings of fact
[16]The Respondent is a wholly owned subsidiary of BT Group plc. The Respondent’s business involves maintaining telephone cables, ducts, cables and exchanges connecting homes and businesses in the United Kingdom to the national broadband and telephone network.[17]The Claimant was employed by the Respondent as a Customer Service Engineer. The Claimant was first engaged by British Telecommunications plc as an agency worker in February 2011, before becoming an employee on 14 June 2011. His work involved providing services to customers at their residential and business properties.[18]Where the Claimant’s work involved climbing ladders, he was required to use Tetra safety equipment (“Tetra”). This equipment includes a set of straps which are placed onto a ladder so as to secure the ladder. The Engineer working with the ladder then puts on a harness which connects the Engineer to the ladder so that if the Engineer slips or has an accident, he or she does not fall from a height to the ground. The ladders in use can be three tier ladders and can go to a significant height. Thus, if an Engineer fell from the ladder, there would be the risk of serious injury or death.[19]The Claimant had been trained on setting up and using safety equipment, including using the Tetra system.[20]On 13 June 2022, Mr David Morley, Patch Lead, picked up a request for assistance made by the Claimant. When he arrived at the location, he saw that the Claimant was up a ladder (which would have been on the pavement and against the front of a building which consisted of retail premises). He states that he saw that the Claimant was not using Tetra safety equipment.[21]The Claimant’s case has subsequently become that, as he says that some of the equipment that he was using should be treated as being within the description of Tetra safety equipment, he was therefore using Tetra safety equipment, so that he should not have been disciplined for not using Tetra safety equipment.[22]The Tribunal was satisfied that the Claimant was not using the harness which would have connected him to the ladder and that this piece of equipment was a fundamental part of the Tetra safety equipment. Without using this fundamental part of the Tetra safety equipment, the Claimant could not be said to be compliant with the requirement to use Tetra safety equipment. The Tribunal was satisfied that the Claimant was well aware of this.[23]Mr Morley’s version of events is timed as having been e-mailed at 13.29 pm on 13 June 2022 which would be consistent with it having been written down more or less once the incident had finished. It is the closest to a contemporaneous account of events. It is relatively brief, and so it is unlikely that it records everything that was said. However, having regard to the close proximity in time between the e-mail and the events that it is describing, the Tribunal has concluded that it is more likely than not that the contents of the e-mail are accurate. The subject line describes the subject as “Statement” from which it seems clear that Mr Morley would have appreciated that it was possible that further action would be taken as result of what happened. Again, the Tribunal considers that this would have caused Mr Morley to be aware of the importance of being accurate in his description of events. His description of events was as set out below. “On arrival I saw another Openreach van drive past me (ended up being Peter Allen), I also noticed that Edmund was up the ladder with no Tetra at all. When I got to the bottom of the ladder I told him that he needed to come down as he had no Tetra no harness and I explained to him he cannot work safely like that. We then continued to talk about how he was going to complete the job. I obviously referred back to tetra and how we can work safely with Tetra across shop front. Edmund said to me, if we done Tetra all the time we would never get any work done. I explained Tetra needs to be deployed every time no matter what. We spoke and it's started to become more arguing as I'm telling him I'm not working there if it's not safe to do so and if he's not willing to listen to me I'll have to speak to his manager. He said call Michael then. So I did. Spoke with Michael myself then he called Michael as well while I went and sat in the van. Michael called me back to say he had spoken to Edmund and Edmund is going to set up Tetra. After these calls Edmund went back up the ladder again with no Tetra and no harness. To which I said close the site down I'm not working with him anymore putting both us at risk. I called Michael told him I'm refusing to help as he doesn't want to listen”.[24]The Tribunal was also satisfied that Mr Morley discussed with the Claimant whether the use of an alternative method of working at height might be more appropriate, such as the use of a scaffold tower or erecting scaffolding, given that much of the front of the premises consisted of glass. The Tribunal notes that this part of any discussion is not specifically referred to in the description of events provided by Mr Morley, but is referenced in the Claimant’s Statement of Evidence.[25]In his description of events, Mr Morley seems to have understood that Mr Bonitto was saying that “he had spoken to Edmund and Edmund is going to set up Tetra”. From this, it seems possible that Mr Bonitto may not have fully appreciated the situation at the work location in terms of any discussion which had already taken place regarding the possible need to use an alternative method of working from a height rather than using a ladder.[26]Given that the dialogue at the scene consisted of four separate two-way conversations, of which three were by telephone (between Mr Morley and the Claimant, between Mr Bonitto and Mr Morley, between the Claimant and Mr Bonitto, and then again between Mr Bonitto and Mr Morley) it is possible that there was some scope for misunderstanding or mixed messages, for example over whether an alternative method of working at height was going to be used or whether the Claimant was going to use the Tetra system. However, the Claimant’s subsequent actions involved doing neither, so were inconsistent with both of the possible ways forward referenced in the evidence. Either way, he should not have gone back up the ladder without using the Tetra system (and if this was not possible, he should not have gone back up the ladder at all).[27]It seems that the Claimant went back up the ladder for the purpose of taking the ladder down (as the ladder was no longer going to be used for the job) which would have necessitated detaching the ladder from where it had been lashed at the top to a piece of metal which was attached to the building. In other words, the Claimant immediately repeated the act of climbing a ladder without using the necessary Tetra safety equipment. If it was not possible to use Tetra safety equipment with the ladder at this location, then an alternative means of accessing the top of the ladder would have had to have been used in order to detach the ladder from where it had been lashed to the building.[28]The Claimant’s position seems to be that, if the work was not going to be done using a ladder, then the ladder had to be taken down, rather than left where it was as a potential hazard for members of the public. Clearly, other arrangements might have been made for taking the ladder down or for dealing with any potential hazard that it might have represented.[29]In any event, the Tribunal has ended up concluding that the seriousness of the actions of the Claimant arose from the actions that he was undertaking at the point in time when Mr Morley arrived at the location, and it is on the basis of these actions that the disciplinary sanction was ultimately upheld at the appeal stage.[30]The next day, Mr Bonitto conducted an investigation. As part of the investigation, he obtained a statement from Mr Morley describing events on 13 June 2022.[31]The Claimant has sought to point to the fact that Mr Morley refers to answering the request for assistance at 11.48 am whereas the Claimant has produced a screenshot showing that the request for assistance was made at 10.55 am. It was explained that Mr Morley would not have been immediately aware of the request for assistance if he was working on another job.[32]Mr Bonitto also obtained another statement from another Patch Lead, Mr Peter Allen, who described having driven his van past the location where he saw the Claimant at the top of his ladder with Mr Morley trying to get him to come down the ladder. Mr Allen suggested that he saw this at approximately 11.40 am which the Claimant suggested was inconsistent with the evidence of Mr Morley to the effect that he picked up the request for assistance at 11.48 am (with Mr Morley seemingly giving this as a precise time). However, it seems clear to the Tribunal that the time given by Mr Allen was not the exact time for his sighting of the Claimant. The Claimant also sought to suggest that Mr Allen would not have been able to have seen that it was the Claimant at the top of the ladder. However, it is not disputed that the Claimant had climbed the ladder, so it does not take matters any further seeking to dispute whether Mr Allen was able to see something happening, when it is not disputed that it had happened.[33]In the Claimant’s case to the Tribunal, he also sought to refer to the absence of any specific reference in Mr Morley’s statement to an instruction to the effect that the Claimant should not climb the ladder, given that one of the subsequent disciplinary allegations against the Claimant was that of not following a reasonable instruction. However, it is clear from the description of the discussion provided by Mr Morley that the Claimant had been told that he should not be climbing a ladder without Tetra, which is precisely what he did after the discussion. He would also have been aware that this was the position before he climbed the ladder on the first occasion.[34]Mr Bonitto then conducted a fact-finding meeting with the Claimant on the morning of 14 June 2022. Essentially this was an investigation interview. The Claimant has subsequently suggested that he should have been allowed to be accompanied at the meeting. The Respondent’s policy makes it clear that there was no right to be accompanied at such a meeting, although the policy suggests that consideration will be given to allowing an employee to be accompanied if a request is made. No request was made.[35]A template was used for a misconduct investigation report on which a note of the interview was recorded. Section 1 of the document is in the terms set out below. “It’s come to my attention from a phone call from Patch Lead Dave Morley that whilst on a task in Streatham High Road you call for an assist when Dave Morley Patch Lead arrived you were up the top of the ladder without any Tetra kit he asked you to come down asked you not to climb without any safety kit. He then called me to explain the situation I then called you and told you to set up your Tetra kit immediately to which you agreed once we finished the call you then went up the ladder again without any Tetra Kit ignoring my instructions”.[36]After general questioning about safety, the Claimant was asked as to when “do we have to use Tetra”. His answer was that Tetra had to be used whenever climbing. The third question simply asked him to explain events. After describing the job that he was undertaking for the customer, the Claimant described events in the terms set out below. “I checked outside for a footway box to see any visible cable, at this point I was aware of the parking time needed to complete this task and feeling a little stressed because this task is going to a long time to complete so I called an assist for another point of view how to complete this task. I had to get all my safety equipment in the rush of things I was worried about time I failed to get my Tetra kit out and could not see any place to use Tetra so I went up the ladder without any safety gear for a quick look I tied my ladder on the top. At (that) time Dave Morley showed up and waved for me to come down I came down. He said you need to have Tetra to climb I agreed with him because it’s the policy. He said he would call my manager”.[37]Mr Bonitto then said that he had spoken to Mr Morley who had explained the situation and then Mr Bonitto had called the Claimant and “told you to set up your Tetra Kit to which you agreed”. He asked the Claimant “did you again climb the ladder with no safety kit after we had that conversation”. The Claimant stated that he had “listened to every (thing) that was said and agreed to use another form of safety”. However, he also accepted that “I climbed again after our conversation and you instructed me not to only to pack up”. In answer to the next question as to the reason he had been asked “not to climb without Tetra”, he replied that it is “for my safety”. The point can also be made that, in addition to being for the employee’s safety, the reason for requiring the use of Tetra was also to ensure the safety of members of the public.[38]The penultimate question involved Mr Bonitto summarising the points made and asking the Claimant if he agreed that this was a correct summary. The Claimant is recorded as having agreed with the summary given. The template document then contained a box for the signature of the employee alongside a statement confirming that “the notes of the meeting are true and accurate”. The Claimant’s name has been typed in this box alongside the date. There was a similar box where the investigating manager’s name had been typed under a statement confirming that the notes of the meeting were true and accurate.[39]In his ET1 Form of Claim, the Claimant complains that the “fact-finding statement by my manager Mr Michael Bonitto is inaccurate, (it) was not agreed and signed by the me and the manager”. He stated that when “I requested a copy of the statement he gave an excuse he did not know how to use the printer”. The Tribunal accepted the evidence of Mr Bonitto that the Claimant had read the record of the interview on the screen and had confirmed that it was accurate, although Mr Bonitto seemed uncertain as to who had actually typed the Claimant’s name in the box. Mr Bonitto suggested that the record of the interview would have subsequently been e-mailed to the Claimant although the Tribunal has not had sight of any such e-mail. However, the record of the interview was subsequently sent to the Claimant with the letter telling him that a disciplinary hearing would take place.[40]Although the Claimant has raised issues regarding the timing of the interview on the morning of 14 June 2022 (the record suggested that it took place between 8.00 am and 9.00am), he has not raised any meaningful issues regarding the accuracy of the replies that he is recorded as having given. He had plenty of opportunity to do so in both the disciplinary hearing and the appeal hearing. The replies which are given in the investigatory interview are consistent with the replies given in both the disciplinary hearing and the appeal hearing where the Claimant was essentially accepting that he had climbed the ladder on two occasions without the required safety equipment, with the second occasion being after he had been reminded as to the need to use Tetra safety equipment.[41]Section 4 of the template document required the investigating manager to provide a summary of the facts and his or her recommendation. In the course of the Tribunal hearing, it transpired that the version of the report which was in the bundle was an earlier draft version, so that it became necessary for the Tribunal to be provided with the final version of the report which was the version sent to the Claimant. Section 4 of the final version of the report was in the terms set out below. “Having completed my investigations into this case of alleged misconduct, I’ve come to the following conclusions. On 13th June Edmund failed to safeguard himself and the public by climbing up a ladder without any Safety Tetra equipment and once instructed by his Manager and Dave Morley a Patch Lead not to return up the ladder without his Tetra kit this advice was ignored and Edmund returned to the top of the ladder without any safety equipment In response Edmund stated that he is aware that he should use Tetra when climbing and that he was feeling stressed on this occasion as he thought the task might take a long time to complete and he was conscious of the parking time. I recommend that this case is progressed as gross misconduct under the company’s disciplinary procedure”.[42]The draft version had been in the terms set out below. “Having completed my investigations into this case of alleged Serious misconduct, I’ve come to the following conclusions. Edmund has failed to safeguard himself and the public by climbing up a ladder without any Safety Tetra equipment and once instructed by his Manager and Dave Morley a Patch Lead not to return up the ladder without his Tetra kit this advice was ignored and Edmund returned to the top of the ladder without any safety equipment. I recommend that this case is progressed as Serious misconduct …. under the company’s disciplinary procedure”.[43]The Tribunal notes that one of the effects of the amendments is to refer to gross misconduct rather than serious misconduct. However, this is consistent with the Respondent’s disciplinary policy which does not refer to serious misconduct as a category of misconduct but identifies gross misconduct as a category of misconduct.[44]The Claimant was e-mailed a suspension letter on 14 June 2022. The letter was in standard terms for a suspension letter. The letter did explain that if, during his suspension, the Claimant needed access to any documentation available on the Respondent’s intranet site, then he should contact Mr Bonitto.[45]On 28 June 2022, the Claimant was informed that a disciplinary hearing would take place following the investigation into his conduct. The conduct in issue was specifically identified as failing to use safety equipment whilst climbing up a ladder on 13 June 2022 (the first charge) and then having ignored instructions in climbing the ladder again without safety equipment (the second charge).[46]The disciplinary hearing was conducted by Mr Adam Hodgkiss, the Senior Area Manager for London and the South-East. It was his responsibility to conduct disciplinary hearings for Engineers in that area, unless there was a reason otherwise. The Claimant attended at the disciplinary hearing with his union representative, Mr Dean Reason. It was not suggested that there was any reason for Mr Hodgkiss not being able to conduct the disciplinary hearing. The Tribunal noted that the disciplinary hearing was conducted by telephone. It might have been more satisfactory had such a hearing taken place in person, or, at least by video. However, whilst was this was less than ideal, it was not suggested at the time or subsequently that this caused the disciplinary hearing to be unfair, and the Tribunal does not find that it caused the dismissal to be procedurally unfair. The Tribunal makes the same observations and arrived at the same conclusions in relation to the later appeal hearing.[47]On numerous occasions in the course of the disciplinary hearing, the Claimant apologised for his actions and acknowledged the severity of the misconduct, as set out below. “Adam … all I can say is I made a serious error, in which I’m really very, very sorry for doing so…. Tetra couldn’t be deployed on this job … and I shouldn’t have … put a ladder and gone up there without any safety, so for this I am really, very, very sorry …. I realise that it was a very serious mistake to do, an error in judgment, which I should have never done. If … Tetra couldn’t be used, I should have just left it for other methods to be considered …. I realised I ballsed up in the first place … and realised you know, it was a big mistake …. I would have put my hands up to it. And as I said I’m very, very sorry for, um, breaking that rule, um. You know, I would never, ever do that again …. I breached safety, right? And I put my hands up to it was a, it was a really terrible error of mine in the process of me doing my work … and I’m really sorry that I have breached the safety protocol and that … I’m very, very sorry for that, you know, I would never, ever do that uh, knowing the implications of anything, never, ever do that”.[48]Consistent with the above admissions, the Claimant’s trade union representative essentially made representations on his behalf to the effect that he admitted the disciplinary allegations and the seriousness of the matter, but was hoping for leniency, as set out below. “He’s admitted going up the ladder, he’s admitted you know, that he never should have gone up there … this was a one-off moment of madness is what he’s framed it to me, and a huge error in judgment … There is no argument to be had on this around the charge of what he’s done … if there can be anything up to a dismissal … of course you know, it would be good to see Edmund still employed, but equally we understand the severity of the situation”.[49]There was a delay in the decision being communicated to the Claimant, despite the Claimant having originally been told that he would get a decision by the end of the week. The explanation was that of Mr Hodgkiss having had lengthy subsequent absences on holiday. Whilst this was unsatisfactory, the Tribunal was satisfied that the delay and the lack of communication, in itself, did not cause the decision or the decision-making process to be flawed or unfair.[50]The decision was ultimately communicated by a letter dated 23 August 2022. The letter referred to the charges (namely those set out in the letter convening the disciplinary meeting) as proven. The decision was that of a summary dismissal on the grounds of gross misconduct. The letter confirmed that as “you’ve been dismissed from the company for gross misconduct you’re not entitled to notice or payment in lieu of notice”.[51]The letter was accompanied by a document setting out the rationale for the decision. This set out, by way of a series of bullet points, various points which had been made by the Claimant in the course of the disciplinary hearing in seeking to explain his actions, with Mr Hodgkiss responding to these points. The document then contained a conclusion which was in the terms set out below. “The main purpose of the disciplinary process is to identify the root cause, avoid reoccurrence, and thereby ensure that processes are followed by all individuals and are not compromised by anyone for any reason. You have understood the safety policy but decided to not follow it putting not only yourself but also the public and the customer as risk. You are fully trained in the use of Tetra and how important it is yet … decided (not) to use it then continued to climb your ladder even when you had been told that this was not acceptable. Even if it was only for a short amount of time you still made the choice to climb the ladder. In terms of making my decision I have looked at your length of service, performance and attendance record. I have carefully considered all the evidence and all the possible outcomes. There are large amounts of trust given to individuals when working and making decisions and I don’t feel that the trust is there anymore. I have therefore decided due to the serious nature of the charges to dismiss”.[52]The letter explained the Claimant’s right of appeal. On 23 August 2022, the Claimant e-mailed Mr David Kelly, Director, London & South-East Region (Service Delivery), seeking to exercise his right of appeal although the e-mail did not set out any grounds of appeal but stated that “I have been a good diligent worker who has always given 110 percent to our customers”.[53]The Claimant had not sought to suggest that he had any prior dealings with Mr Kelly. Indeed, he accepted, in the course of cross-examining Mr Kelly during the Tribunal hearing, that he had no reason to believe that Mr Kelly was influenced by his age or race in arriving at his ultimate decision to dismiss the appeal.[54]The ET1 Form of Claim has not identified any specific unfairness arising out of the appeal, save that the appeal obviously resulted in the same decision to dismiss as the disciplinary decision.[55]In the course of the appeal hearing, the Claimant had made similar admissions and apologies to those made in the course of the disciplinary hearing.[56]The reasoning for the appeal decision was set out in a document which sought to respond to the points being made by the Claimant and contained the conclusion set out below. “After reviewing this case and taking time to think about each point that has been raised, I have come to the conclusion that Edmund has been trained and was aware of what he needed to have (to) do. He said himself in the meeting that he has a good understanding and knowledge of Engineering. The reason Tetra was introduced to the business was people ha(ve) been seriously injured falling off of ladders and the business wanted to put a stop to this. Tetra is a great system and not difficult to use. In this case I believe that Edmund has knowing (sic) climbed the ladder when he knew he shouldn’t have without deploying his Tetra. I have taken into account Edmund’s length of service and performance, however with such a serious safety breach I am left with little option apart from dismissal”.[57]The wording of the appeal decision letter had also referred to the decision being that the charges (in the plural) were “proven”. This gave the impression (to both the Claimant and the Tribunal) that the appeal was being upheld on the basis that the Claimant was guilty of both the disciplinary allegations, namely the serious breach of safety and the failure to follow a reasonable instruction.[58]In fact, it became clear from the oral evidence of Mr Kelly to the Tribunal, that he had found the charge of failing to follow a reasonable instruction (arising out of going back up the ladder) as difficult to establish as he accepted that it was possible that there may have been a breakdown of communication. Thus, Mr Kelly had concluded that he could not be sure as to the communication which had taken place on the day. Thus, although he had concluded, on appeal, that the Claimant was guilty of the first charge (of having “failed to use any safety equipment whilst climbing up a ladder”, which effectively referred to having gone up the ladder in the first place without using the Tetra system), the second charge (that he “then ignored instructions from management and re-climbed the ladder, again, without the appropriate safety kit”) was effectively dropped at the appeal stage.[59]However, Mr Kelly also upheld the sanction of dismissal on the basis that he was satisfied that this was still the correct sanction in respect of the remaining disciplinary charge in respect of which he had satisfied himself that the Claimant was guilty.[60]In his ET1 Form of Claim, the Claimant seemed to accept that he had not used the Tetra safety system. Thus, he asserted that he had used “the ladder using a previously long approved system by Openreach rather than a current new system”.[61]The preliminary hearing on 5 January 2023 had made directions for Statements of Evidence to be exchanged on 25 July 2023. The directions included the guidance set out below. “The parties must prepare a written statement for each person (including the Claimant) who is going to be a witness on their behalf at the Tribunal hearing. The witness statements must set out all the facts about which a witness intends to tell the Tribunal relevant to the issues in the case”.[62]The date for the exchange of Statements of Evidence was varied by agreement to 8 August 2023. The Respondent sought to exchange Statements of Evidence on this date, but in the absence of a response from the Claimant eventually sent the Claimant password protected copies of its Statements of Evidence on 11 August 2023. When the matter was raised with the Tribunal, the Claimant replied, on 21 August 2023, by explaining that “I was unaware my testimony was to form the main witness statement”. He eventually provided his witness statement on 26 August 2023.[63]It is noteworthy that this Statement of Evidence was not seeking to suggest that the Claimant had complied with the requirements in respect of using Tetra. Rather, he explained, as in the ET1 Form of Claim, that “I needed to secure my ladder at the top of the structure; so used a previous long approved system of climbing by Openreach to go up the ladder as I could not use the current new system due to the structure a shop front being made out of glass”. In other words, he was clearly saying that he had not used Tetra, but had used the system or method which had been replaced by Tetra. This Statement of Evidence seemed to be accepting that, when Mr Morley had arrived, “I acknowledged the safety issue in question … and therefore immediately discontinued the job on the advice of the Patch Leader Mr David Morley”.[64]This Statement of Evidence did not seem to be seeking to suggest that the Claimant had used Tetra or complied with the requirements in respect of Tetra.[65]On 24 August 2023, the Respondent had provided additional documentation to be added to the Bundle for the final hearing. This was two days before the Claimant provided his Statement of Evidence.[66]The documentation which had been added included the FAQs which have been made available after the requirement to use Tetra had been introduced, albeit the actual version added to the bundle was an updated version which post-dated the Claimant’s dismissal. However, the version of the document which would have been applicable at the time of the incident was subsequently provided and was to the same effect.[67]The very first question was as set out below. “Once I have been trained to use the Tetra equipment, is it mandatory for me to use it?”[68]The answer was as below. “Yes, it’s Openreach policy, and mandatory that you must use the Tetra system when climbing an extension ladder against a wall / solid structure or pole”.[69]It is noteworthy that the answer set out above was as to using the Tetra “system”. The Tribunal is satisfied that the Claimant would have understood the Tetra system to involve the use of the harness. The Claimant accepted during the disciplinary process and the Tribunal hearing that he had been trained on the Tetra system. However, had there been any doubt about this, the answer to the next question in the FAQs make the position clear.[70]The question was as set out below. “Can I climb a ladder without using the Tetra system?”[71]The answer was in the terms set out below. “We set the deadline for Tetra training completion as the end of June 2021, and so now, no-one must climb a ladder until they have completed their Tetra training. Climbing skills and ladders must be removed from non-Tetra trained Engineers until the training has been completed”.[72]The additional documentation provided on 24 August 2023 also added the section on climbing practices from the Respondent’s health and safety handbook.[73]At the final hearing, it became clear that the Claimant’s case had become, based upon his interpretation of this document as to climbing practices, that he now believed that he had complied with the requirement to use Tetra.[74]The Tribunal was directed to and notes the wording of section 5.2 of the document which was in the terms set out below. “5.2 Climbing a leaning ladder using the Tetra ladder system. Climbing a ladder using the Tetra system incorporates a fall safety element, so that if you slip whilst climbing, you’re protected. However, it works together with the ladder securing element covered in section 4.2. You must not use the fall arrest element if the ladder isn’t secured to a solid structure. It could destabilise the ladder and cause a serious accident”.[75]Section 4.2 (referred to at section 5.2, see above) covered the use of the safety belt/harness.[76]The Tribunal was also referred to and notes the wording of section 4.6.10 as to ladder mats (referred to as a “bottom end stability device”) which was in the terms set out below. “These mats have been designed to work in combination with the Tetra system and replace the previous “Ladder Stopper” and packing pieces”.[77]In the evidence given to the Tribunal, in answer to questions from the members, the Claimant now explained that his belief was that, as he was using this bottom end stability device as well as a top end stability device, he was effectively using the Tetra system and / or using it as best as he could (having regard to the fact that a large part of the front of the property consisted of a shop window so that there was no obvious place to secure an eyebolt). This interpretation seemed to be put forward, at best, on the basis that the bottom end stability device and the top end stability device should be regarded as being part of the Tetra system, so that, if the Claimant was using them, he could be said to be using the Tetra system. It was an interpretation which, properly analysed, seemed to suggest that he could pick and choose which parts of the Tetra system he used so that the use of the harness effectively became an optional extra.[78]It further transpired that the Claimant had submitted a further Statement of Evidence on 14 September 2023 when he had served documents in relation to the issue of mitigation on the Respondent. It had not originally been appreciated by the Respondent that this further Statement related to liability issues with the result that the Statement which was headed “Mitigation Evidence” was not originally provided to the Tribunal at the start of the case.[79]This Statement headed “Mitigation Evidence” was suddenly provided to the Tribunal and contained a paragraph regarding the arrival of Mr Morley, on the scene of the relevant incident, which was in the terms set out below. “He made his way to me letting me know I have to use Tetra. “To be frank” I did use part of the kit provided (Ladder Mats (bottom end stability device). Contrary to the General Principles of Climbing Practices section 5.2, paragraph 2”. (The Tribunal has set out the provisions of section 5.2 above).[80]The Tribunal was satisfied that the Claimant knew full well that the Tetra system involves the use of the harness. Using “part of the kit” was not enough. Partial compliance was insufficient. The fact that he knew this was consistent with his apologies and admissions over the course of the disciplinary and appeal processes. The arguments to the contrary which the Claimant had subsequently put forward involved an opportunistic and retrospective attempt to justify his actions. He was aware at the time that his actions could not be justified and so his approach to the disciplinary and appeal processes had been one of seeking leniency rather than establishing innocence.[81]In support of his case that his dismissal amounted to age discrimination or race discrimination, the Claimant set out various matters in his ET1 Form of Claim, with very little additional detail being added in his Statement of Evidence which was in the terms set out below. “Many occasions I believe that I have been coerced into disclosing my age. At team meeting at Gypsy Hill Exchange by my Manager, Mr Bonitto. He would go around the team asking each one for their years of experience and when he got to me he would ask me directly to disclose my age in front of a young team of Engineers. Mr Bonitto had access to my paper driving license in March 2022 for the first time and commented on it not being valid. 1. Patch Leader on my team, Tristan on a random visit to check the company vehicle whilst I was on a job on Anerley Vale off Anerley hill London in the afternoon 2. Patch Leader on my team Colin Everdeen after training checks.in Sydenham. Exchange in the morning climbing poles and walls asking me directly in front another young colleague how old I was? I always had to dodge the question as old as I want to be. Both these individuals and Mr Bonitto tried to coerce me to reveal my age in front of colleagues was unnecessary and the cause of much anxiety to me. Mr Bonitto would regularly ‘sneak up’ on me and would refer to me as ‘sleeping on the job’ on more than one occasion(1) At Hythe Road at the junction of Grange Road Thornton Heath while working at the Telephone,(2) At Ross Road South Norwood while working at the Telephone Cabinet He would refer to me what am I doing with all the monies I am getting from the overtime I am doing. Whilst this may have been said in jest, I feel his remarks were uncalled, especially as I worked industriously at all times. I believe that I have fallen foul of discrimination by sheer dint of my race/age. I have been overlooked in promotion to Fibre Engineer compared to other young black ethnic colleagues on more than one occasion. Various period of time I offered my interest in doing the job for the fibre roll but all response went being ignored although I had Advance Qualification in copper and fibre certifications. It’s quite clear the company wants older staff out new in. It’s quite clear the company wants older staff out new in”.[82]In his oral evidence, the Claimant also referred to an alleged incident where he had been telephoned by Adam Hodgkiss regarding his progress with a particular job and he suggested that Adam Hodgkiss made a laughingstock of him in making comments to the effect that the Claimant had at least completed the first job. It was not being suggested that any comments were discriminatory. The intention behind raising the matter seems to be simply to show Mr Hodgkiss in a poor light. Mr Hodgkiss explained (and the Tribunal accepted) that, at the weekend, when he was on duty, he would readily ring Engineers to see how they were getting on and if they needed help. He denied that he would have been making sarcastic comments to any Engineer that he spoke to on the telephone but could not recall a specific conversation with the Claimant as he was responsible for approximately 600 Engineers.[83]The Tribunal accepted that, in the circumstances, it was very unlikely that any comments made by Mr Hotchkiss were in any way sarcastic. Had this incident merited the significance which the Claimant now seemed to be attaching to it, the Tribunal would have expected it to have at least been referred to in the Claimant’s Statement of Evidence. The Tribunal was a little concerned that this was an example of the Claimant seeking retrospectively to attach an interpretation and significance to an interaction which had taken place, in order to suit the narrative of his Tribunal case.[84]On the evidence which it heard, the Tribunal was also concerned that the Claimant was attaching undue significance to the position in respect of driving licences been checked. The Claimant was responsible for driving a van and Mr Bonitto had to carry out yearly driving checks on all Engineers, including the Claimant, to make sure that their licences were valid. The Tribunal accepted that these checks were carried out on a one-to-one basis, and not with others present. The Tribunal was unable to conclude that this was evidence of any bias or prejudice towards older employees.[85]In the face of the limited detail regarding alleged comments by Mr Bonitto referring to the Claimant as sleeping on the job, the Tribunal had difficulty seeing that these were alleged comments related to the Claimant’s age or were relevant to his complaint of age discrimination. The Tribunal was effectively being left to ascertain any link to the Claimant’s age for itself. However, the Tribunal also accepted the evidence of Mr Bonitto denying the Claimant’s allegation that he would “sneak up” on the Claimant and would refer to him as “sleeping on the job”. This allegation seemed to have arisen from the Claimant’s perception that Mr Bonitto was checking up on him. Mr Bonitto explained that, if he was on the road and spotted one of the Respondent’s Engineers out on a job as he was driving past, he would pull over and speak with the Engineer on the task. He would not sneak up on the person concerned but might make a stop unannounced to see how the Engineer was and ask if the Engineer needed any assistance on the job. He did this with all of the Engineers in the area he covered. The conversations would be friendly conversations and he would offer assistance if required. The Tribunal was not satisfied that the Claimant was treated any differently to other Engineers or that any conversations were because of his race or age.[86]The Respondent seemed to have misinterpreted the Claimant’s case as set out in the ET1 Form of Claim as being to the effect that Mr Bonitto had forced the Claimant to reveal his age in front of two colleagues called Tristan CheahTrowers and Colin Everdeen (who were both Patch Lead Supervisors) at a team meeting in Gypsy Hill in March 2022. In fact, from the Claimant’s Statement of Evidence, it seems that the Claimant is suggesting that, in addition to being asked about his age in a team meeting by Mr Bonitto, there were separate occasions in which Mr Cheah-Trowers and Mr Everdeen asked him as to his age. If the Claimant’s case has been misinterpreted in this way, it may explain the reason for the Tribunal not having heard any evidence from Mr CheahTrowers and Mr Everdeen. However, in the circumstances, the Tribunal was prepared to accept that there were circumstances in which the Claimant was asked as to his age by these two individuals. The Tribunal also recognises that questions as to age may be sensitive questions for some employees and that the Claimant may have felt as if he was being put on the spot in being asked as to his age. However, the lack of detail regarding these incidents was such that the Tribunal was not in a position to attach the significance to such questions that the Claimant seemed to be suggesting, namely that it might have been indicative of a negative mindset about older employees. The Tribunal had also not been referred to Mr Cheah-Trowers and / or Mr Everdeen having had any relevant involvement in the issues which resulted in the Claimant’s dismissal.[87]The Tribunal was not in a position to make any meaningful findings regarding the Claimant’s assertion that he had been overlooked for promotion to a role as a Fibre Engineer. The Tribunal accepted the evidence of Mr Bonitto (which was not seriously disputed by the Claimant) that the role of a Fibre Engineer would not have been a promotion, as it would be the same role (with the same pay) but in a different area of the business. The Tribunal had not seen any documentation in relation to any process by which Engineers might have been considered for the role of Fibre Engineer and was not in a position to arrive at any conclusions as to whether there was a situation in which individuals were preferred to the Claimant notwithstanding the Claimant having better claims to be considered for such a position, or that his age or race was a factor in any consideration was given. The Tribunal notes that the Claimant seems to be suggesting that young black ethnic employees were treated more favourably than him. This was effectively the only evidence put forward in relation to his complaints of race discrimination.[88]In any event, the Tribunal noted and accepted the evidence from the Respondent that, at a similar time to the Claimant’s dismissal, the Respondent had also dismissed another employee for not using Tetra safety equipment with this employee being described as a Black British employee in his 40s. As such, any suggestion that the Tribunal should draw an inference as to race or age discrimination from the Claimant’s evidence as to younger Black employees being treated more favourably than the Claimant was not persuasive since the Tribunal had the evidence of a younger Black employee being treated in the same way as the Claimant, in so far as he was also dismissed for not using Tetra. Relevant law Unfair Dismissal
Relevant law
[89]Employment Rights Act 1996 section 98(1) provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show — “(a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.[90]For these purposes, a reason is within scope of Employment Rights Act 1996 section 98(2), so as to be a potentially fair reason for dismissal, if it relates to conduct.[91]Employment Rights Act 1996 section 98(4) provides that “where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) —(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case”.[92]In British Home Stores Limited v Burchell [1978] IRLR 379, the Employment Appeal Tribunal held that, in misconduct cases, Tribunals should consider whether:(1) the employer genuinely believed that the employee was guilty of misconduct;(2) the employer had in mind reasonable grounds on which to sustain that belief; and(3) at the stage at which the employer formed the belief on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.[93]In Iceland Frozen Foods Limited v Jones [1982] IRLR 43, it was made clear that, in applying the test in British Home Stores Limited v Burchell [1978], the Tribunal must not substitute its decision as to what was the right course for the Respondent to adopt. It must ask itself whether the decision to dismiss the Claimant fell within the band of reasonable responses which a reasonable employer might have adopted.[94]In Boys and Girls Welfare Society v McDonald [1996] IRLR 129, it was made clear that there is always an area of discretion within which management may decide on a range of disciplinary sanctions, all of which might be considered reasonable. It is not for the Tribunal to ask whether a lesser sanction would have been reasonable, but whether or not dismissal was within the range of reasonable responses open to an employer.[95]In terms of the extent of the investigation required, in Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23, the Court of Appeal held (at paragraph 30) that the band of reasonable responses test applies as much to the question of whether the investigation into the suspected misconduct was reasonable in the circumstances, as it does to the reasonableness of the decision to dismiss.[96]In Whitbread plc v Hall [2001] ICR 699, the Court of Appeal confirmed that the “band of reasonable responses test” applied to the issue of procedural fairness, as set out below. “Section 98(4) of the 1996 Act requires the Tribunal to determine whether the employer ‘acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee’ and further to determine this in accordance with the ‘equity and the substantial merits of the case’. This suggests that there are both substantive and procedural elements to the decision to both of which the ‘band of reasonable responses’ test should be applied” (paragraph 16).[97]In Taylor v OCS Group Limited [2006] ICR 1602, the Court of Appeal stressed that the Tribunal’s task under ERA 1996 section 98(4) is to assess the fairness of the disciplinary process as a whole. Wrongful dismissal / dismissal without notice[98]In legal terms, as far as the complaint of dismissal without notice is concerned, the issue is whether the Claimant behaved in such a way as to entitle the Respondent to dismiss him without notice. For these purposes the Tribunal has to make findings as to whether there was conduct which amounted to a fundamental breach of contract, rather than findings as to the reasonableness or otherwise of the Respondent’s decision. Direct discrimination[99]Equality Act 2010 section 13 provides that a “person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[100]Thus, direct discrimination takes place where a Claimant is treated less favourably, because of the relevant protected characteristic, than the employer treats or would treat others. This can involve comparing the treatment of a Claimant with that or perceived by an actual comparator, or comparing the Claimant’s treatment with that which would have been received by a hypothetical comparator.[101]Where the relevant protected characteristic is age, direct discrimination may not be unlawful if the Respondent succeeds with a defence of justification, in respect of which Equality Act 2010 section 13(2) is in the terms set out below. “If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim”.[102]Section 23(1) of the Equality Act 2010 provides that on a comparison for the purpose of establishing direct discrimination there must be “no material difference between the circumstances relating to each case”. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL, Lord Scott explained that this means that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”.[103]It is not a requirement that the situations have to be precisely the same. For example, the existence of a different decision maker does not prevent the comparison being a valid one (see Olalekan v Serco Limited [2019] IRLR 314).[104]In JP Morgan Limited v Chweidan [2012] ICR 268, Elias LJ gave the guidance (at paragraph 5) set out below. “In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment”.[105]In every case the Tribunal has to determine the reason for the Claimant having been treated as he or she was. In Nagarajan v London Regional Transport [1999] IRLR 572, Lord Nicholls observed that “this is the crucial question”. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.[106]In Gould v St John’s Downshire Hill [2021] ICR 1, EAT, Linden J made it clear that the Tribunal must consider the reason for the actions of the alleged discriminator, as set out below. “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious”.[107]The focus is on the mental processes of the person that took the impugned decisions. In a direct discrimination claim, the Tribunal should consider whether that person was influenced consciously or unconsciously to a significant extent by the Claimant’s relevant protected characteristic. The decision makers’ motives are irrelevant. Burden of proof in discrimination cases[108]Equality Act 2010 section 136 provides for a shifting burden of proof, as set out below. “(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.[109]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. This guidance has subsequently been approved by the Court of Appeal in Madarassy v Nomura International plc [2007] ICR 867, and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paragraphs 25-32). In Efobi v Royal Mail Group Limited [2021] ICR 1263, at paragraph 26, Lord Leggatt made it clear that Equality Act 2010 section 136 had not made any substantive change to the previous law.[110]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of the Claimant’s relevant protected characteristic. At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondent and assume that there is no explanation for them. It can, however, take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent. If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decisions or treatment.[111]The mere fact that the Claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy the first stage of the shifting burden of proof. It may be that the employer has treated the Claimant unreasonably. That is a frequent occurrence quite irrespective of the race or age or other protected characteristics of the employee and will not, by itself, be enough to shift the burden of proof (see Bahl v The Law Society [2004] IRLR 799, and Zafar v Glasgow City Council [1998] IRLR 36).[112]In Madarassy v Nomura International plc [2007] ICR 867, the Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the Respondent. Mummery LJ gave the guidance set out below. “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.[113]Madarassy v Nomura International plc [2007] was approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, where Lord Hope stated that it was important not to make too much of the role of the burden of proof provisions as set out below. “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other” (paragraph 32).[114]In Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865, Elias J at paragraph 15 said that the mere fact that an unsuccessful candidate was a black woman and successful candidates were white men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory non-discriminatory explanation. To shift the burden of proof, a Claimant must also prove something more. That is, the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristics and the detrimental treatment, in the absence of a nondiscriminatory explanation.[115]It is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the shifting burden of proof (see Brown v Croydon LBC [2007] IRLR 259, CA, at paragraphs 28 to 39).
Conclusions
[116]What was the reason or principal reason for dismissal? The Respondent says that the reason was conduct or some other substantial reason. The Tribunal had to decide whether the Respondent genuinely believed the Claimant had committed misconduct.[117]The Tribunal was satisfied that the Respondent genuinely believed that the Claimant had committed misconduct. This was effectively the evidence of the Respondent’s three witnesses who dealt with the investigation, disciplinary proceedings and appeal. The Tribunal accepted this evidence as being to the effect that they believed that the Claimant had failed to comply with a requirement to use mandatory safety equipment and that this was misconduct.[118]If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal needed to consider, in particular, whether(1) there were reasonable grounds for that belief;(2) at the time that the belief was formed the Respondent had carried out a reasonable investigation;(3) the Respondent otherwise acted in a procedurally fair manner; and(4) dismissal was within the range of reasonable responses.[119]The Tribunal was satisfied that there were reasonable grounds for that belief that the Claimant was guilty of misconduct. Essentially, the report e-mailed by Mr Morley confirmed that the Claimant had failed to use essential Tetra equipment in climbing the ladder and he was a witness to this when he arrived on the scene. In particular, he failed to use the harness which he should have been using. This was a key component of the Tetra system. The Claimant essentially admitted that he had failed to use the equipment that he should have been using on numerous occasions through the investigatory, disciplinary and appeal process.[120]In the Further Particulars filed by the Claimant for the preliminary hearing on 5 January 2023, he essentially set out five grounds to his complaint of unfair dismissal. The first ground was that of no “training given to deal with the particular job on the day”. The Tribunal has found that the Claimant had been trained regarding the use of Tetra. In so far as the specific issue being raised was as to whether he had been trained to deal with a job where a large part of the front of the premises consisted of a shop window, so that an alternative method of working at height might have been appropriate, rather than using a ladder, it was, in any event, the Claimant’s case that he had managed to secure the ladder to a piece of protruding metal work. However, the point is that he was not being disciplined for using a ladder when he might have been using a different method of working at height; he was being disciplined for using the ladder without the necessary safety equipment. If he was going to use a ladder, then he should have been using the Tetra safety system.[121]The second ground of complaint was that no advice was given by the Patch Leader, Mr Morley, on the day of the incident, as to the way in which the ladder should be taken down given that it was secured at the top. The third ground of complaint made a very similar point regarding the lack of advice from Mr Bonitto, other than to use Tetra. The Tribunal concluded, as did Mr Kelly at the appeal stage, that there were mixed messages at this point. On the one hand, there was a discussion about using an alternative method of working at height, whereas Mr Bonitto had discussed using Tetra to climb the ladder. However, neither such message involved going back up the ladder without using Tetra. In any event, the part of the disciplinary case against the Claimant regarding having gone back up the ladder without using Tetra was effectively dropped at the appeal stage.[122]This left the remaining disciplinary charge relating to having failed to use the required safety equipment in the first place. The Claimant has subsequently sought to suggest that using a bottom end stability device as well as a top end stability device would have been sufficient and / or amounted to using Tetra safety equipment. The Tribunal was satisfied that the Claimant knew full well that he should have been using the harness as part of his safety equipment. The suggestion that there was no breach of any safety requirements in not using the harness was inconsistent with the admissions made by the Claimant through the investigatory, disciplinary and appeal process. The Respondent was entitled to rely upon these admissions (and the reaction of the Claimant when his omissions been pointed out to him by Mr Morley, as set out in Mr Morley’s emailed statement) as establishing that the Claimant was aware of the need to wear a harness as part of the Tetra system when using a ladder, and the serious nature of not doing so.[123]Did the Respondent carry out a reasonable investigation? For employment law purposes, the reasonableness of any investigation covers the reasonableness of the enquiries made by the employer for the purposes of making the decision in issue. Thus, this will include the process of investigating the disciplinary charges as carried out through the disciplinary hearing itself. The reasonableness of any investigation is to be judged by reference to the band of reasonable responses. The Tribunal has set out its findings of fact as to the steps taken by the Respondent. This included obtaining written versions of events from the two employees who were witnesses to the Claimant’s actions at the location where he was using the ladder on 13 June 2022. The Claimant was interviewed on the day after the incident. As stated, over the course of the investigatory and disciplinary process (and the appeal process) he essentially admitted that his actions amounted to serious breaches of the health and safety requirements made of him by his employer. Against this background, and in this context, the Tribunal has concluded that the investigation undertaken by the Respondent fell within the band of reasonable responses.[124]Did the Respondent otherwise act in a procedurally fair manner? Again, the reasonableness of the procedure adopted is to be judged by reference to the band of reasonable responses. The Tribunal has set out its findings of fact as to the procedure followed by the Respondent.[125]The fourth ground of complaint raised by the Claimant in the Further Particulars of his case was that no minutes were given at the fact-finding meeting although the Claimant asked for a copy. The Tribunal has set out its findings of fact regarding this. The Tribunal was satisfied that the Claimant had an opportunity to read the minutes that had been written on a screen at the end of the interview. The minutes were then effectively included in the investigation report which was sent to the Claimant with the letter convening the disciplinary hearing. The Claimant would have had the opportunity at the disciplinary hearing to draw the attention of the decision maker to any inaccuracies in the minutes. Although there was an issue over the exact time of the interview, he has not subsequently referred to any inaccuracies which materially impacted upon the disciplinary process or disciplinary case. Indeed, at the disciplinary hearing, he was largely admitting the disciplinary case against him in relation to alleged serious safety breaches.[126]Ultimately, on the basis of the findings of fact made by the Tribunal, and having consider the issues raised by the Claimant, the Tribunal was satisfied that the procedure followed by the Respondent amounted to a procedure which was within the band of reasonable responses open to an employer, and accordingly met the requirements of fairness arising from the employment rights act 1996 section 98.[127]Was dismissal within the range of reasonable responses? The final ground of complaint in the Claimant’s Further Particulars was that a verbal or written warning should have been given before dismissal was considered. The Tribunal was satisfied that the Respondent was entitled to treat the Claimant’s conduct as involving a serious safety breach. The consequence of the safety breach was that the Claimant could have sustained a serious or fatal injury, or a serious or fatal injury could have been sustained by someone else. It follows that the Respondent was entitled to treat the conduct as amounting to gross misconduct in respect of which summary dismissal was appropriate. This was the case, even with an employee of previous good character and long service. It follows that such a decision was within the band of reasonable responses.[128]By reason of the conclusion that the dismissal was fair, it was not necessary to give further consideration to the issues of compliance with the ACAS Code of Practice on Disciplinary and Grievance Procedures, whether the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, and whether he caused or contributed to his dismissal by blameworthy conduct.[129]The Tribunal also concluded, on the basis of the Claimant’s conduct amounting to gross misconduct, that his conduct gave rise to a fundamental breach of contract which it contractually entitled the respondent to dismiss without notice. As such, his dismissal involved no breach of his contractual entitlement to notice.[130]The Tribunal turned to consider the complaints of direct age and race discrimination. The detriment relied upon was that of dismissal. Was that less favourable treatment? The Tribunal needed to decide whether the Claimant was treated worse than someone else (an actual comparator) was treated. For these purposes, there would need to be no material difference between the circumstances of the comparator and the circumstances of the Claimant. The Claimant had not identified an actual comparator for these purposes. The Tribunal had not been referred to another employee who faced a similar disciplinary case who was not dismissed. If there was nobody in the same circumstances as the Claimant, the Tribunal needed to consider whether he was treated worse than someone else would have been treated (a hypothetical comparator). For these purposes, in addition to there being no evidence of any other employee facing a comparable disciplinary case and not being dismissed, the Tribunal also had the evidence of another employee, who was younger and not Asian, being dismissed for not using Tetra safety equipment. Although the Tribunal has no real information regarding the circumstances of this other case, the only evidence before the Tribunal suggests that there was consistency of treatment in terms of the Respondent treating failures to use Tetra safety equipment as meriting dismissal.[131]If there was less favourable treatment, was it because of age or race? This question does not arise on the basis that the Tribunal was not satisfied that there was a prima facie case of the Claimant being treated less favourably than a hypothetical comparator would have been treated. In any event, the Tribunal was not satisfied, on the basis of the findings made regarding the evidence adduced by the Claimant regarding comments or treatment related to his age, that this evidence amounted to evidence from which it could conclude that any difference in treatment was on the grounds of age. Similarly, the Tribunal was not satisfied, on the basis of the consideration given to the Claimant’s assertions that he had been overlooked for promotion to Fibre Engineer in preference for young Black colleagues, that this provided a basis from which the Tribunal could infer that the dismissal of the Claimant had been on the grounds of his age or race. In any event, the Tribunal accepted the explanation of the Respondent that the dismissal of the Claimant was because of the view taken by the Respondent regarding his conduct and that age and / or race played no part in arriving at this decision.[132]For the sake of completeness, for the purposes of any complaint of age discrimination, if the issue arose, the Tribunal would have found that the treatment of the Claimant was justified. The disciplinary approach adopted by the Respondent reflected the legitimate aim of ensuring that there was compliance with important health and safety requirements and that serious accidents were avoided. Given the potential seriousness of any such accidents, dismissing an employee for a serious breach of such requirements was a proportionate means of achieving this legitimate aim.[133]It follows that the decision of the Tribunal is that the complaints of the Claimant should be dismissed. Approved by