Mr A Marzec v Knightsbridge Court Management Company Ltd: 2211437/2022
EMPLOYMENT TRIBUNALS
Case No 2211437/2022
Between
Mr A MarzecClaimantKnightsbridge Court Management Company LtdRespondent
Before
Employment Judge WebsterIn person for claimantMr Boyd (instructed by Counsel) for respondentDate 8 July 2025
JUDGMENT
[1]The Claimant’s claim for unfair dismissal is upheld.[2]The Claimant’s claim for whistleblowing detriment is not upheld.[3]The Claimant’s claim for automatic unfair dismissal is not upheld. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision. Case No 2211437/2022[1]The Claimant’s claim for unfair dismissal is upheld.[2]The Claimant’s claim for whistleblowing detriments is not upheld.[3]The Claimant’s claim for automatic unfair dismissal is not upheld.
REASONS
[4]The List of Issues was agreed with the parties at the outset of the hearing including ensuring that the protected disclosures relied upon were clearly agreed given the orders that were made at the last hearing which had not been followed up by the Tribunal. The disclosures relied upon are set out in the List of Issues which is appended to this judgment.[5]The Claimant asserted during this discussion and throughout the hearing that he had sent several other emails that in his view amounted to protected disclosures. There was extensive discussion with the parties about disclosure. We make findings of fact in relation to what disclosure exercise the Respondent undertook as it is relevant to our findings and subsequently our conclusions. In summary it appears that several individuals within the Respondent and its managing agent did not undertake a thorough disclosure exercise. Some crucial documents were produced during the hearing after our initial discussion. Others that may exist were not disclosed - but we were also not told that any efforts were made by the managing agents, or the respondent to seek them out. The Claimant however was not able to specify what other emails he was relying upon, their dates or precisely what they contained other than saying that they were complaints about Ms Rogers and her behaviour.[6]We had witness statements from:(i) The Claimant(ii) Ms Santana(iii) Ms Solaja(iv) M Barham(v) Ms Phillips(vi) Mr Fooks[7]We allowed Ms Santana’s second statement into evidence despite objection from the Claimant. Her statement was produced as a rebuttal statement to the Claimant’s statement. Although it was sent after the deadline and the Respondent had not sought permission to rely on an additional statement before serving it we decided that as the Claimant had had the statement for several months and the contents of the statement were relevant overall balancing the relative prejudices between the parties, we considered that the additional statement did not significantly adversely affect the Claimant as he was in a position to challenge the evidence during cross examination. Further, the content of the statement was of use to the Tribunal in explaining various issues that would otherwise have to have been dealt with by way of allowing oral evidence in chief from Ms Santana. This way the Claimant was aware in advance of that evidence and able to challenge it in the normal way.[8]At the close of evidence the Claimant submitted an application for us to strike out the Respondent’s case because of the manner in which it had been pursued including the failure to properly disclose documents. Given that, at this stage, we had heard all the evidence and the Claimant had been in a position to put his case in respect of the missing documents and the overall way that the case had been prepared we considered, on balance, that it would be wholly disproportionate to strike out the Respondent’s case at this late stage. They were entitled to defend the claim and we would reach our conclusions bearing in mind the suggested lack of disclosure and other issues raised.[9]The Tribunal delivered an oral judgment to the parties on 8 July. There was insufficient time to deal with remedy and a remedy hearing was listed.[10]The Claimant requested written reasons on 13 July 2025. The parties were informed on 22 July that due to annual leave, those written reasons would not be sent before September 2025.
The Law
[11]Section 98 of the Employment Rights Act 1996 (ERA) provides as follows:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show – (a) The reason (or if more than one, the principal reason) for the dismissal, and (b) That it is either a reason falling within subsection (20 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) Relates to the conduct of the employee, (c) Is that the employee was redundant, or (d) Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a) (a) ‘capability’ in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental qualify and (b) ‘qualifications in relation to an employee means any degree, diploma or other academic technical or professional qualification relevant to the position which he held.(4) In any other case where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismiss is fair or unfair (having regard to the reason shown by the employer) – (a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonable or unreasonably in treating it as a sufficient reason for dismissing the employee and (b) Shall be determined in accordance with equity and the substantial merits of the case.[12]The respondent’s case was that this was dismissal for conduct. That is a potentially fair reason under s 98(2)(b) ERA. In the event that the respondent is correct in that context a determination of the fairness of the dismissal under s98(4) is required. This involves an analysis of whether the respondent’s decision makers had a reasonable and honest belief in the misconduct alleged. Further a tribunal must determine whether there were reasonable grounds for such a belief after such investigation as a reasonable employer would have undertaken. The burden of proof is neutral in relation to the fairness of the dismissal once the respondent has established that the reason is a potentially fair reason for dismissal. The tribunal must also determine whether the sanction falls within the range of reasonable responses to the misconduct identified. This test of band of reasonable responses also applies when considering whether the investigation they undertook was a reasonable investigation and whether the belief that they came to was based on reasonable grounds.[13]In the event that the claimant is found to have been unfairly dismissed a monetary award is made under s119 ERA (basic award) and s123 ERA (compensatory award). Reductions may be made to those awards. For the basic award a reduction can be made where the tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award, then the tribunal is to reduce that amount accordingly. Under s123 ERA subsection 6, where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just an equitable having regard to that finding. Qualifying Disclosures[14]S 43B ERA 1996 - Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed[15]In this case the Claimant relies on s43B(1)(b) and (d).The Claimant must establish that at the time of the disclosure they have a reasonable belief that the information they provide tends to show that one of the above relevant failures has occurred, is occurring or is likely to occur.[16]The Tribunal must consider what the Claimant themself reasonably believed. This requires a mixture of assessing what the Claimant subjectively believed at the time but applying an element of objective reasonableness taking into account the experience and knowledge of the individual in question. Korashi v Abertawe Bro Morgannwg University Local Health Board 2012 IRLR 4, EAT, confirmed that a Tribunal must apply an objective standard to the personal circumstances of the discloser, and that those with professional or ‘insider’ knowledge will be held to a different standard than laypersons in respect of what it is ‘reasonable’ for them to believe.[17]If the worker establishes that they reasonably believe that the disclosure tends to show a relevant failure then the worker must establish that they reasonably believe that the disclosure is made in the public interest.[18]In Chesterton Global Limited v Nurmohamed [2018] ICR 731 the Court of Appeal concluded that a disclosure could be in the public interest even if the motivation for the disclosure was to advance the worker‘s own interests. Motive was irrelevant. What was required was that the worker reasonably believed disclosure was in the public interest in addition to his own personal interest. So long as workers genuinely believed that disclosures were in the public interest when making the disclosure, they could justify the reasonableness of the public interest element by reference to factors that they did not have in mind at the time. A Tribunal would need to consider all the circumstances, and although not a checklist, that could include the following:(i) The numbers in the group whose interests the disclosure served – although numbers by themselves would often be an insufficient basis for establishing public interest.(ii) The nature and the extent of the interests affected – the more important the interest and the more serious the effect, the more likely that public interest is engaged.(iii) The nature of the wrongdoing – disclosure about deliberate wrongdoing is more likely to be regarded as in the public interest than inadvertent wrongdoing.(iv) The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more likely that disclosure would be in the public interest.[19]Whistleblowing Detriment - s47B (1A) ERA “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –(a) By another worker of W’s employer in the course of that other worker’s employment, or(b) By an agent of W’s employer with the employer’s authority” on the ground that W has made a protected disclosure.[20]The burden of proof is on the claimant to prove (on balance of probabilities) that they made a protected disclosure and that they suffered a detriment. The respondent then has the burden to prove (on balance of probabilities) the reason for the treatment (s48(2) ERA).[21]The test for whether a detriment was on the ground of the protected disclosure (s47B (1) ERA 1996, involves an analysis of the mental processes (conscious or unconscious) of the employer when it acted as it did. In NHS Manchester v Fecitt and others [2012] IRLR 64, the Court of Appeal held that the test in detriment cases is whether "the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower".[22]Automatic Unfair Dismissal s103A Employment Rights Act 1996 “s103AProtected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[23]The case of Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA, held that the reason for a dismissal must be the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee’. In Croydon Health Services NHS Trust v Beatt 2017 ICR 1240, CA, Lord Justice Underhill observed that the principle in Abernethy “may not be perfectly apt in every case; but the essential point is that the “reason” for a dismissal connotes the factor or factors operating on the mind of the decision maker which cause them to take the decision — or, as it is sometimes put, what “motivates” them to do so’.[24]The protected disclosure must be the main or dominant reason. If a disclosure was just a subsidiary reason to the main reason for dismissal, then the employee’s claim under S.103A ERA 1996 cannot succeed.
Facts
[25]We have only made findings in relation to facts which assisted our conclusions. If we do not reference evidence that was provided to us during the course of the proceedings that does not mean we have not considered it, simply that it was not relevant to our conclusions.
Background
[26]The Claimant was employed as a porter by the Respondent from 9 June 2016 until 6 October 2022 when he was dismissed with immediate effect. The Respondent says that the reason for dismissal was gross misconduct.[27]The Respondent is a limited company which has a lease to it for the common parts of Knightsbridge Court and operates as a supervisory board to oversee the operation of the building. They do this on behalf of Knightsbridge Court Residents Limited who hold the head lease from the freeholders. At the relevant time there were four directors of this company: Mr Fooks, Mr Marshall, Mr Pagano and Mr Lubran. The only two employees of the company were the porters – the Claimant and Paul Hayward.[28]One of the residents was Ms Sue Rogers. She is married to Mr Fooks something which was not referred to at all in Mr Fooks’ witness statement despite being wholly relevant to the matters in question. Mr Fooks was unable to adequately explain this omission from his statement.[29]The Respondent employs a management company (D&G Block Management Ltd ‘D&G’) to carry out the day to day management of the block including the line management of the two porters. It was not in dispute that it was the Respondent who directly employed the Claimant however they delegated management including all policies and procedures, to D&G and within that structure, Amy Phillips was the Claimant’s line manager. Documents and disclosure disputes[30]The terms of the Claimant’s contract were in dispute. As it was not clear which contract was in operation because of a previous dispute between the parties, we adopted the terms of the contract at page 43 of the bundle which was the contract that the Claimant said was in place. We decided, on balance, that this was the document which governed his terms and conditions in the absence of any evidence on the matter from the Respondent witnesses clarifying which contract had been given to the Claimant or how the dispute about which contract had been resolved. In any event, its relevance is limited. Of relevance within that contract was Clause 13. “ 13. CONFIDENTIALITY & INTELLECTUAL PROPERTY For the purposes of this section "confidential information" shall include (without limitation) information concerning any unpublished financial, trading or operational information, including particulars of processes, designs, products and statistics in relation to:• The employer• Any of the employer's customers, suppliers, agents or distributors so far as it has come to your knowledge by reason of your employment You will not (except in the proper performance of your job) either during your employment or at any time after its termination for whatever reason:• Disclose any confidential information to any person• Turn such confidential information to your own account You will use your best efforts to prevent:• The publication or disclosure of confidential information• Any misuse of such information You must obtain permission from the Managing Director before agreeing to give any lecture, press interview or to publish any article which would give details of the employer's business.”[31]Further in dispute was the status of the disciplinary process that was in the bundle. We accept that the process we had in the bundle was part of the ‘new’ D&G supplied contract which the Claimant disputed was in place. We did not have the processes and procedures which the Claimant said were part of his original contract as they were from the previous management company and had not been forwarded to the new management company. We were not addressed on the contractual status of any of the policies and procedures in any event.[32]Prior to the Claimant’s dismissal he fell out with one of the residents, Ms Rogers. Both parties appear to wish to maintain that they did not fall out per se. Mr Fooks said that Ms Rogers simply challenged the Claimant politely on various occasions regarding the rubbish. The Claimant said that she bullied and harassed him but that he could have continued working with her if she left him alone. We find that it is clear that they did fall out and that there were significant disagreements between them. We also find that the Claimant’s overall animosity towards Ms Rogers was, overall, on balance, excessive and disproportionate to the matters that arose.[33]Ms Rogers is a tenant who has an office and an apartment within the block. There was evidence that the Claimant and Ms Rogers had not had a good relationship for approximately 2 years by the time of his dismissal, at least from the Claimant’s point of view. There was no evidence, apart from the Claimant’s account in his emails, that Ms Rogers had the same concerns regarding the Claimant. Her correspondence, such as it was, was limited to short emails about the Claimant which were broadly polite and factual e.g. p150. They ask for something to be done and his behaviour managed, but they are not rude or aggressive.[34]The Claimant maintains that there were several emails that he had sent to various people regarding Ms Rogers that have not been disclosed by the Respondent. He says that these form part of the emails he relies upon as demonstrating that he had been making protected disclosures about Ms Rogers’ behaviour for many years and that he had been treated badly as a result. Of the emails that we had in the bundle he relied on the following:(i) 20.9.20 – email - p 54 This email is a complaint about the fact that Ms Rogers was complaining to him about him leaving his desk to use the toilet during a 14 hour shift. He makes it clear that he does not want to be a go-between, between D&G and the Directors and that he finds Ms Rogers’ complaints ridiculous. He maintains that he must be able to leave his desk during a 14 hour shift for a variety of work-related reasons as well as using the toilet. It is not clear who this email was sent to but it was responded to by Mr Marshall and the other directors and Amy Philips were copied in.(ii) 27.10.20 – Emails – p 152 This is an email from the Claimant to Ms Phillips regarding the procedure for the disposal of rubbish. There is no complaint from the Claimant and it is factual in nature.(iii) 20.12.20 – email – 58 This email is from the Claimant to D&G and Mr Marshall. It outlines the Claimant’s objections to Ms Rogers’ concerns about the rubbish and her proposals for dealing with it. He requests help with Ms Rogers asking, “Once again I need to ask you to help me take this person from back. This is nothing more than mocking. As mentioned before I DO NOT want to have involvement with her dealings with Directors.”(iv) 06.01.21 – email – p 59-60 This is an email from the Claimant to Ms Phillips which informs Ms Phillips that Ms Rogers is taking photos of the rubbish in case Ms Rogers later forwards them to Ms Phillips. He also tells Ms Phillips that the rubbish will be cleaned ‘ like everday’.(v) 15.10.21 – email x 2 – p 61 This is an email to the Directors (apart from Mr Fooks) and D&G concerning an incident that day with Ms Rogers and Mr Fooks. The Claimant asserts that Ms Rogers was wrongly accessing a restricted area of the building and that when he asked her to leave she became offensive and started calling the Board. He says he was mocked by Mr Fooks and Ms Rogers and called a liar by Ms Rogers.(vi) 16.10.21 – email – p 62 This is an email from the Claimant to Ms Phillips asserting that Ms Rogers was wrongly throwing rubbish or moving rubbish into the wrong place which could result in the rubbish not being collected because it blocked the rubbish bale.(vii) 6.8.22 – email – p 68 This email is to Ms Phillips and copied to the directors (apart from Mr Fooks) reporting that Ms Rogers was taking photos of the rubbish in order to make a ‘malicious complaint’ and asserting that she had installed 2 large wooden benches outside number 54 and questioning whether the other properties can therefore have garden furniture in the courtyard..(viii)19 August 2022 – p 84 This is a complaint about an argument between the Claimant, Ms Rogers, her son and Mr Fooks on the same day. It alleges that mS Rogers complained about the rubbish left by a family moving out that day, that Ms Rogers mocked the Claimant, that Ms Rogers and her son shouted at the Claimant and that Ms Rogers was persistently and repeatedly ‘mocking’ the Claimant and asking for an official letter from the company asking Ms Rogers to stop and desist harassment of him and saying that if it was not sent he would report the situation to the police. He sends a copy of a suggested ‘Cease and Desist’ letter from him that should be sent to Ms Rogers.(ix) 23.8.22 – p 82 When the Claimant is asked for more evidence about his allegations by Ms Phillips, the Claimant responds saying that Ms Phillips had all the details the last two years when he asked the Board, on two different occasions to make Ms Rogers leave him alone. He says that the request for more detail is absurd as he has provided all the evidence in the past and expects a formal investigation. He informs them that he will send the Cease and Desist letter himself.(x) 30.8.22 – emails between A Phillips and N Fooks – p 81 Ms Phillips forwards to Mr Fooks the Claimant’s email dated 23 August 2022 and the attached cease and desist letter.(xi) 30.8.22 – p 87 This is the Cease and Desist letter which is set out in full below.[35]He told us that the other emails, that he had been asking for repeatedly since his disciplinary process began also amounted to protected disclosures. As an overall observation we find that the Respondent has failed to undertake a thorough disclosure exercise.[36]Evidence of this was the fact that we were provided with emails from Mr Marshall and Mr Fooks, directors of the company and lawyers themselves, that were only disclosed on the third day of these proceedings. Ms Phillips confirmed to us that she had not believed that earlier emails from the Claimant about the matter were relevant though she did not explain why and subsequently did nothing to comply with her ongoing obligations of disclosure to then retrieve those emails. During a meeting whilst he was employed, the Claimant asked for those emails and was told that they were the property of KC and therefore they would not be produced. They did not deny that such emails might exist simply that they had not looked for them in preparation for this case. We have had no explanation as to why D&G undertook such a limited search nor an explanation for why the Respondent’s directors undertook such a limited search.[37]We therefore find that it is more likely than not that there are other emails from the Claimant to both the Respondent and D&G regarding Ms Rogers’ behaviour. He has said that the previous emails were similar in tone and complaint and says that they were about Ms Rogers mocking him and complaining about the disposal of rubbish.[38]We make the following findings about the emails we do have and therefore whether any earlier, emails would be relevant:(i) The emails that the Claimant relies upon above, almost all amount to complaints about Ms Rogers’ behaviour regarding rubbish and asserting that she or members of her family are bullying or mocking him. The Claimant says that all his emails (including any missing ones) about Ms Rogers dealt with this subject matter and/or her general behaviour towards him which he described as bullying and ‘mocking’. The emails complain about her behaviour towards him, largely arising out of disagreements as to how the rubbish in the block should be stored and disposed of. If there are more that say similar things and refer to similar incidents (which is what the Claimant indicated he thought they referred to) then they will add little to our conclusions.(ii) Importantly, the Claimant has indicated that he believes any emails that he says have not been disclosed, pre-date the emails we do have. He has been unable to specify dates or times or contents of particular emails that he says caused negative treatment beyond the ones that we have. We find, on balance, that it is more likely than not, that similar emails, about the same person, making similar complaints about her behaviour towards the Claimant, are unlikely to have individually prompted the detriments or dismissal he now relies upon given that none of the detriments he is relying upon occur between the sending of the earlier ‘missing’ emails and the emails we do have. We find that had the earlier, ‘missing’ emails been the catalyst for the decisions that the Respondent took which the Claimant now relies upon as detriments and his dismissal, then either the detriments or the dismissal, or both, would have occurred earlier. The Claimant was not able to point to any negative actions that arose from earlier emails. However, we have taken into account the possibility that there was a cumulative effect and that the accumulation of emails from the Claimant about Ms Rogers’ behaviour towards him, including the possible ‘missing’ emails, could have been a factor in the actions that followed.(iii) The emails we have are focussed entirely on the Claimant’s interactions with Ms Rogers and the impact they have on him as an individual. His concerns about the rubbish and how Ms Rogers is dealing with it or complaining about it or behaving towards him as a result, are all about him. They do not, for example, suggest that the rubbish itself is causing a health and safety issue or posing a risk to others. His point is the opposite – he was doing his job and there was no problem with the rubbish. The problem is Ms Rogers’ belief that the rubbish ought to be dealt with differently. In one email he suggests that Ms Rogers’ behaviour might prevent the rubbish being collected but that is as far is it goes in terms of the wider impact of the situation.(iv) The Claimant’s allegations against Ms Rogers are personal and somewhat hyperbolic. We did not hear from Ms Rogers so we cannot really ascertain what happened at these meetings/interactions. We heard from Mr Fooks who indicated that they were bad tempered exchanges but only from the side of the Claimant who appeared to respond badly to Ms Rogers’ requests that the Claimant did his job properly. Based on the evidence we heard from the Claimant and the way he described the events in his oral evidence to the Tribunal, we find, on balance, that the Claimant’s allegations about Ms Rogers were born of frustration with her differing views and her complaints about his behaviour towards him. However, they were overblown and excessive and he frequently says wholly inappropriate things about her and her behaviour making personal and unnecessary observations about her or her family. We find, on balance, that the majority of these complaints were unfounded and excessive.(v) We do not accept, in general, that there were physical threats to the Claimant. We find this implausible. The stills of photos that the Claimant relies upon of Ms Rogers do not indicate that she was behind the desk and trying to hit him as he now alleges. We do not accept, on balance, that this happened. Further, in the Claimant’s emails at the time and on the day of the alleged incident, they do not mention any such violence or attempt and had it occurred we believe it is more likely than not to have been recorded by him then. We do accept that the interactions between them were bad tempered.[39]All of the emails we were taken to focus on the desire by the Claimant for Ms Rogers to stop complaining to and about him, to stop bothering him and to stop mocking him. Although much of the concerns raised are about rubbish disposal and the systems around the Claimant’s sole purpose in raising these concerns was about his own working environment. He was not raising these concerns because he felt that they affected the general workforce as he now asserts that he was protecting the health and safety of the cleaner, other contractors or other tenants. His focus was solely himself and the need for Ms Rogers to stop being unreasonable. We make a finding of fact, based on all the evidence we heard during these proceedings and having considered the wording of the disclosure emails relied upon very carefully, that the Claimant did not believe that what he was reporting was in the public interest. He was sending these emails because he wanted Ms Rogers to leave him alone. His allegations are clearly all about him and his desire to make Ms Rogers stop complaining to him about the rubbish. In addition, in evidence before us he said that he would have been willing to continue working there because all he was trying to achieve was to get her to stop her behaviour towards him. He did not suggest anywhere in any of his correspondence or meetings that he was looking to stop her behaviour towards anyone else. We therefore consider that he did not actually believe at the time that his disclosures were in the public interest.[40]In summary, whilst we accept that other emails may exist that have not been disclosed because the Respondent has failed to properly explain the disclosure exercise it undertook or asked D&G to undertake, we do not consider that they would have assisted our conclusions in these proceedings. However we have factored this failure of explanation by the Respondent when considering their overall plausibility and their explanation of events. Incidents leading to Claimant’s suspension[41]On 19 August there was a disagreement between the Claimant and Ms Rogers about the placement of a mattress on top of the pallet and the position of both. Ms Rogers wanted the Claimant to move it. The Claimant insisted that it would be collected the next day as a favour. The Claimant told us in his witness evidence that Ms Rogers was aggressive and went round behind his desk to try and hit him. He says that the pictures support that as does the picture of Mr Fooks behind the desk trying to stop Ms Rogers from hitting the claimant.[42]We accept that there was a row between the two that became heated. We consider it more likely than not that Mr Fooks tried to resolve the situation and asked Ms Rogers to leave him to deal with the Claimant. We do not accept that Ms Rogers physically threatened the Claimant.[43]Later that day, at 12.15, the Claimant sent an email to Mr Marshall, Mr Lubran, copying in Ms Phillips and Mr Hayward (p83-84) which details the argument he had with Ms Rogers and Mr Fooks. It is a relatively detailed if slightly confusing, account of the incident from his point of view. It does not mention any threats of violence but it gives details about the rest of the incident. The incident concerned a mattress that was left with the rubbish. In Ms Rogers’ opinion, it was put in the wrong place. The email is relatively balanced in terms of an account as he talks about Mr Fooks being calm. However he also refers to Ms Rogers shouting at him and refers to her son as ‘spoiled’. On balance, given that it is not referred to in this email, we do not think that the Claimant was threatened with violence on that day by Ms Rogers.[44]At the end of the email he requests help from the Company in that he says that Ms Rogers is mocking him and yelling. He finishes with, “I’d like to request official letter from company to stop and desist harassment to her if that won’t help I will report it to metropolitan police.”[45]At 1.45 pm that day, without having acknowledged receipt of the above email, Ms Phillips sent the Claimant and his colleague a performance review form. The review form itself appears to be a standard self-reflective review form which asks basic questions about how someone is doing from a work point of view. There is nothing in the form that suggests any negative view of the Claimant. It may not have been coincidence that it was sent at around this time given the difficulties between the Claimant and Ms Rogers, however we see nothing within this form that is capable of being a detriment. This is not, as maintained by the Claimant, a request for him to be on a performance improvement process of any sort. There is nothing in the form that references a performance review or the need for improvement. It says nothing at all about D&G’s or the Respondent’s view of the Claimant’s performance. The Claimant is asked to set out his strengths and weaknesses but there is nothing suggesting that he is underperforming or likely to be performance managed in any way. Both porters received it and we consider that it was part of D&G’s standard performance process. The fact that it had not occurred the previous year does not, in our view, change that conclusion. We understand why the Claimant may have been troubled that he received this as opposed to a response from Ms Phillips about the altercation with Ms Rogers. However it is not, we find, anything beyond a standard procedural email.[46]On 23 August (p88) the Claimant sent Ms Phillips a copy of a proposed Cease and Desist letter that he wanted sent to Ms Rogers. He referred back to his 19 August email and said that he had not received any response saying that his health and safety in the workplace was still his priority concern. He asks her to send the cease and desist letter to Ms Rogers.[47]On 23 August 2019 the Claimant also sends an email about Ms Rogers kicking up a carpet in the foyer on 22 August. This email is simply a concern about Ms Rogers’ behaviour with the carpet. We find that by this stage, any action by Ms Rogers was now concerning to the Claimant.[48]Ms Phillips replied to both the Cease and Desist email and the earlier one from 19 August on 25 August (p83). She offered the Claimant a meeting and asked for specificity regarding the allegations. She asked him to clarify what he meant by ‘mocking’. The Claimant used this word repeatedly both during his communication with the Respondent and before us. Mock means making fun of someone in a mean way, deriding, or belittling someone to speak or behave disparagingly, derisively, or contemptuously towards someone or something or to mimic someone, usually in a way that makes fun of them . We have considered the Chambers Dictionary definition of ‘mock’ in reaching this conclusion. We think that it was reasonable, in these circumstances, for Ms Phillips to ask for clarity as to what he meant by mocking given that the incidents he describes do not appear to include any examples of mocking as per the normal dictionary definition of that word.[49]The Claimant said to us that he did not provide those examples at the time because he ought not to have to provide the details given that he had provided them repeatedly over the years in respect of the various altercations and disagreements he had with Ms Rogers. However the Claimant’s response to Ms Phillips at the time was to say that Ms Phillips was covering for Ms Rogers and whilst he did not actively refuse a meeting, he did not take her up on the offer and he did not give the further details that she reasonably requested.[50]On balance we find that although he may have sent detailed emails in the past that was no reason for not providing a correct, summary at this point in time. Further, we note that the Claimant has not provided any examples of behaviour by Ms Rogers to us during this Tribunal that amount to the normal definition of ‘mocking’. We recognise that English is not the Claimant’s first language and that this might have contributed to the use of this specific word. However, when its meaning was clarified with him during these proceedings, he still did not provide examples of what he meant by mocking and what he was precisely referring to when he used this word. He was also given the opportunity to explain what he meant by that word at the time by Ms Phillips and did not do so.[51]Ms Phillips’ email to the Claimant said that D & G would not send the letter to Ms Rogers until she had done an investigation into his concerns. She did not provide Ms Rogers’ email address despite his request.[52]On 29 August the Claimant lost patience with what he viewed as D&G’s lack of response and sent the cease and desist letter directly to Ms Rogers. He used the Porter’s phone to do so as this had her telephone number on it.[53]The cease and desist letter said (p87) “Sue Rogers This letter has been served as final warning of your persistent unwarranted harassment activities, that has been ongoing since 2020. Actions including but not limited to: - Contacting me in any form directly or indirectly - Demanding to taking part in conspiracy or any actions against current Board Directors to take his place. - Ridiculing, abusive conduct, mocking, spreading rumours or insulting comments - Making false malicious accusations. - Making false claims about psychic violence or assaults - Defamation of Character in the Workplace. - Professional slander - Causing emotional distress - Inappropriate questions or requests If you do not cease and desist harassment immediately I will take appropriate legal action against you and will seek all available damages and remedies. Adam — KC Porter”[54]The Claimant knew that Ms Rogers’ phone number was personal data. He later refers to not providing an agency staff member with keys or fobs or the correct access to the safe because it would have given them access to personal data on the phone. He also knew that his employer did not want him to send the letter because Ms Phillips made it clear that she would not send it for him because it needed further investigation. He did not want to wait for that investigation and took matters into his own hands. He knew that he was not meant to misuse personal information about the residents as he has confirmed that he was well aware of Clause 13 of his contract as set out above.[55]On 30 August there was an email exchange between two of the directors; Mr Marshall and Mr Fooks. This exchange was only provided to the Tribunal part way through the proceedings. Although Mr Fooks explained the failure as an oversight meaning that he had not checked for these emails, we had no explanation as to why Mr Marshall had failed to disclose them. We find that the emails demonstrate a clear and unequivocal decision to dismiss the Claimant. We find that in the absence of any witness evidence from Mr Marshall and the surrounding circumstances of the case that, on balance of probabilities this was what was intended by those emails.[56]Mr Fooks’s initial email to Mr Marshall says, “Dear Philip, Adam’s position is now completely untenable. I have just spoken to Amy to discover that he took time off without permission, ordered a replacement porter and had neither left keys or fobs . The agency he used is not the one Amy would use and is more expensive. It is significant that Adam ordered this at midday and then sent the cease and desist nonsense at 3.45 pm . This man is clearly out of control and thinks he is untouchable. Of course the sending of the cease and desist letter is a fundamental breach of GDPR using Sue’s personal data to send the letter to . Douglas and Gordon , of course are the data controllers . The allegations, in relation to Sue are defamatory and whilst he does not know what he is doing , he is actually accusing her of a criminal offence without any justification. We then add the flat invasion of 31 and his assistance to the subletting. He is continually dishonest with Amy . This is not an entire litany of his misdeeds. He has to go now !!! Kind regards Nick[57]Mr Marshall then responded “I agree. I think we dismiss for gross misconduct. We need a replacement first though. Do we have one through an agency? Kind regards Philip”[58]Mr Fooks told us that despite what the emails say, both Directors knew they had to follow a fair procedure and that no decision had been made. That is not reflected in these emails at all. Their only concern is that a replacement is found. To that end Mr Fooks indicates that he is going to call Amy Phillips.[59]On balance we find that the decision to dismiss the Claimant was made during this email exchange. Any subsequent procedure followed was used to shore up or justify the decision which was based on the facts or assumptions that Mr Fooks outlined in his email to Mr Marshall as set out above. This took place before there was any investigation whatsoever or before the Claimant knew that any such action was being contemplated.[60]This finding is further supported by the fact that neither Ms Solaja or Ms Barham during their evidence to us, were able to confirm what the breach of GDPR was that the Claimant was dismissed for and Ms Solaja was unable to say who made the decision to dismiss the Claimant.[61]It is also supported by the contradicting evidence we were provided by the Respondent witnesses as to who made the decision to dismiss the Claimant. Mr Fooks said in oral evidence, in direct contrast to what the witness statements said, that Mr Marshall made the decision. Ms Solaja was equivocal at best as to who made the decision despite the fact that her witness statement said that she did. We had no evidence at all from Mr Marshall as to how he reached his decision or on what basis he reached that decision.[62]In the context of this contradictory evidence as to who made the decision, we find, on balance of probabilities that the decision to dismiss was made during this email exchange for the reasons that Mr Fooks gives in his email to Mr Marshall and that everything that followed was a process designed to give the appearance of procedural fairness. Disciplinary investigation process[63]Following that decision Mr Fooks called Amy Phillips and they agreed that the Claimant ought to be suspended once his annual leave has been completed.. It is not clear that Ms Phillips, Ms Solaja or Ms Barham knew of the certainty of their decision. However we are sure that it was conveyed to them in fairly unequivocal terms that the Respondent felt that the Claimant’s behaviour had crossed a line and they no longer wanted him working there.[64]This is supported by the exchange on 7 September between Mr Fooks and Ms Phillips where she is gathering evidence for the disciplinary. When Mr Fooks provided the information, she replied, “I thought as much but want this to be air tight!!!’. We consider that this demonstrates that their aim was to ensure that the Claimant was dismissed suggesting that those within D & G had also prejudged the outcome.[65]The Claimant was suspended on 12 September 2022 by letter dated 12 September 2022. This was a fairly standard suspension letter and we accept that it used template wording, including a no contact with colleagues paragraph. The Claimant says that this part of the letter was wholly unfair and prevented him from preparing properly for the subsequent meetings. He has not however indicated to us who he wanted to speak to in respect of this matter or what information that would have provided.[66]The Claimant was invited to an investigation meeting by letter dated 12 September which outlined the allegations as follows:• “Breach of GDPR• Taking unauthorised leave on Tuesday 30 August• Unauthorised use of a Director’s shed to park your scooter• Failure to follow reasonable management instructions[67]The disciplinary investigation meeting took place on 15 September 2022. It was chaired by Mr Whitham (senior property manager) and Ms Santana took notes. The Claimant was not entitled to be accompanied at that meeting in line with the ACAS procedure. This practice reflects the ACAS procedure and there was no contractual entitlement that the Claimant be accompanied at this meeting.[68]They discussed all the matters in the bullet points above. As a result of that conversation, the Respondent did not proceed with the issue regarding the scooter on the basis that they accepted that the Claimant had previously been told he could park there. With regard to the holiday issue the Claimant states that he was entitled to take last minute holiday as he had never had to seek permission before. Normally they would arrange it between the porters but he did not have to seek permission. He had tried to arrange cover with Paul first. This appears to have been accepted by the Respondent as at no point is it suggested after this that he took leave without permission.[69]They then discussed booking cover through a different agency. Whilst we accept that he was aware that they had most recently used Claibon, the Respondent provided no evidence to us that he ought to have known not to use Abbatts. There were no policies or procedures that we were taken to which said that the Claimant could not book leave at the last minute as he had done, or that he had to use a specific agency to arrange cover. On balance we therefore accept that the Claimant had not breached any policies or procedures in not asking for permission to take the leave and for using Abbats as opposed to Claibon.[70]The Claimant said that he had been told by Paul to use Abbatts but Paul later told Ms Philips that he told the Claimant to use an agency but did not say which one. This was supported by the messages between Paul and the Claimant. Paul had told him to use an agency but had not specified which one.[71]The reasons that the Claimant gave as to why he took such last minute leave changed. During the investigation meeting he said that he had to move home and was unsure if he would have to rebook his flights. He later said that he needed to care for a sick relative. We find that the details he gave about why he needed to take last minute leave fluctuated and it was reasonable for the Respondent and D & G to be suspicious as to the reason he took this leave in this way.[72]The issue of failing to follow a reasonable management instruction regarding the gas meter was discussed and as a result it was not pursued any further. We consider that D & G did not consider that they had sufficient information upon which to proceed as a result of the investigation meeting. This is the purpose of investigation meetings.[73]The alleged breach of GDPR was also discussed at the investigation meeting. They discussed the fact that the Claimant used the work phone to send the message and to access Ms Rogers’ phone number. The fact that the Claimant did not delete the message from the phone was also briefly discussed. (p107).[74]After the meeting, when the Claimant said in response to the allegation about booking Abbatts instead of Claibon that Paul had told him to, Ms Santana spoke to Paul Hayward. Paul explained that he had spoken to the Claimant but had just told him to book an agency without mentioning a name. The information that Mr Hayward gave Ms Santana during this call was subsequently referred to as a ‘statement’ by Mr Hayward. Subsequently the Claimant has spent considerable energy proving that a ‘statement’ was not made. We consider this is based on a misunderstanding of the word ‘statement’. Mr Hayward has confirmed to the Claimant that he did speak to Ms Santana and did tell her what she has written in the file note. We find that he did do this and we accept Mr Hayward’s account of the discussion between the Claimant and him at the time as it is supported by Ms Santana’s note and the subsequent text from Mr Hayward. Further we do not consider that Mr Hayward had any reason to lie to either party about this matter. Grievance[75]The Claimant submitted a formal grievance dated 13 September 2022. (p162- 163) The Claimant made significant allegations regarding Ms Phillips’ conduct relating to the way in which Ms Rogers’ conduct was dealt with. The grievance was dealt with by Ms Solaja and not upheld. The meeting was held on 22 September before the disciplinary hearing took place.[76]In those circumstances we do not consider that it was inappropriate for Ms Solaja to consider the grievance given that many employers would have dealt with the concerns the Claimant raised within the disciplinary process itself given how closely linked the matters were. Disciplinary meeting[77]As a result of that meeting, the Claimant was written to on 26 September 2022 (p108) and invited to a disciplinary meeting. He was provided with all the relevant documentation and the letter informed him of his right to be accompanied at the meeting and that the possible outcome could be dismissal.[78]The letter was sent by email 46 hours before the meeting was due to take place. This was in breach of the Respondent’s policy which allowed for 48 hours. The Claimant asked for more time. He says that the allegations against him had changed from the investigation meeting (which they had) and that 46 hours was not sufficient for him to prepare.[79]D & G refused saying that he had sufficient time and they needed to proceed on this date due to the availability of a director for the Respondent. The Claimant also asked for the director to be changed to Mr Marshall given Mr Fooks’ relationship to Ms Rogers. This was also refused and the Claimant was told that Mr Fooks was attending as an observer only. We were told that Mr Marshall was not available at the time but we were not told on what basis he was not available. We accept that the other two directors could not have attended or taken any active part in the process due to either their own ill health or the ill health of a spouse.[80]The allegations against the Claimant contained in the disciplinary invitation were :• Potential breach of GDPR by the misuse of a leaseholder's personal information to send a Cease and Desist letter on the 29th August 2022• Potential breach of GDPR by forwarding emails which you have sent to the Directors of Knightsbridge Court Management Company Ltd containing Directors' email addresses, to your own personal email account• Potential breach of GDPR by taking photographs of CCTV footage of a leaseholder photographing the rubbish• Failing to arrange a handover with a temporary member of staff and give them a set of keys so they can gain access to the premises.• Failure to advise D&GBM of arranging a temporary member of staff from an unauthorized agency and falsifying your reason for contacting Abbatts rather than Claibon. These allegations, if proven, constitute gross misconduct.[81]The disciplinary meeting proceeded on 28 September with Ms Solaja, Ms Santana and Mr Fooks in attendance on behalf of the Respondent and D & G.[82]Mr Fooks indicated that the Respondent felt it was important to have a director there. It is not clear why this was considered important. This was particularly unclear in circumstances where, according to the directors they had not made the decision and were not going to play any part in the meeting. If that was the case, but they wanted an overview of the situation, they could have looked at the minutes and waited for Ms Solaja’s recommendations.[83]We do not understand the purpose of Mr Fooks’ attendance even on the Respondent’s own case. Either the decision was being made by Ms Solaja in which case he didn’t need to be there, or it was being made by Mr Marshall based on Ms Solaja’s recommendations in which case Mr Fooks still did not need to be there. We consider that it was entirely reasonable for the Claimant to consider that his presence was an indication that the process was not a transparent one because both at the time, and before us, a plausible explanation for Mr Fooks being there was entirely missing. In evidence before us Ms Santana indicated that she recognised the difficulties of him attending but could not say no to him as a client.[84]At the disciplinary meeting (p118) the lack of notice for the meeting was discussed. The Claimant said that it was unfair that he had less than 48 hours to prepare. We find that there were problems with regard to this meeting proceeding so quickly for the following reasons:(i) The allegation of a breach of the GDPR was a technical allegation which the Claimant needed to understand and consider, in order to properly answer it. During these proceedings the Tribunal received three separate explanations as to what the alleged breach of GDPR actually was. That the Respondent witnesses could not explain it to us confirms that they were not able to explain it to the Claimant either and did not do so at any stage of the disciplinary process. Had the Claimant had more time he may have been able to better understand or question what the allegation against him actually was.(ii) The decision to proceed without more notice appeared to be based on Mr Fooks’ availability. Given our observations above regarding the need for Mr Fooks to attend, it is of concern that his availability was put ahead of adhering to D & G’s disciplinary policy’s time frame of 48 hours which would only have been a short delay.(iii) English is the Claimant’s second language and therefore reading documents and statements could take him longer(iv) The Respondent and D & G knew he did not have access to legal advice(v) Dismissal was a real possibility[85]Despite Mr Fooks’ presence we accept that the Claimant got to say everything he wanted to say at the disciplinary meeting even if his ability to understand everything that he was being accused of was not entirely clear because of the lack of understanding amongst all parties as to what the breach of GDPR actually was. “AM said I am being denied the right to answer the questions on GDPR. Do you know what the three points of GDPR. Misuse is not a breach. KS advised that neither he, GS or herself are GDPR experts but we will be guided by our solicitors.” (p120)[86]Nevertheless, we consider that the issue around use of the porter’s phone to send the cease and desist letter were bottomed out and properly discussed. There was some discussion regarding the purpose and effect of a cease and desist letter. “GS said going back to your letter, it ended with a warning that if you do not cease and desist harassment immediately, you will take appropriate legal action. Why did you think it was appropriate to send a personal threatening letter to a shareholder of the company from the company phone and using personal data which you were privy to only for the purposes of acting in the course of your employment as covered previously? AM said harassment in the workplace is work related. I am using the phone authorised by the company. I did not get her phone number from someone else; it has been provided to me. It is my legal right.” (p120)[87]We think that part of the concerns regarding the use of the porter’s phone is explained appropriately by the Respondent during this meeting and the Claimant’s response is disingenuous. He says that it was his legal right to use the phone and Ms Rogers’ number because it is part of his job. However, there is a clear and obvious a difference between using the phone for work purposes and using it to send this particular letter, which his line manager has said would not be sent on his behalf. The Claimant’s explanation that this letter and the situation was work related because he was talking about matters occurring at work is understandable. However we do not accept that he did not know that sending this letter to Ms Rogers in this way was incorrect usage of the phone and his access to Ms Rogers’ number. Firstly, he had originally asked Ms Phillips to send the letter which indicated that he knew he ought not to send it himself. Secondly, the Claimant clearly understood some aspects of accessing personal data as he has argued that he was not able to do a handover to a member of agency staff because he was not authorised to do so as it would provide access to the residents’ personal data to the agency staff. He therefore understood the concept of personal data and used it for his own arguments later. The Claimant knew that D&G and his line manager did not support him sending the Cease and Desist letter. Despite this he used personal data of Ms Rogers that he had access to because of his job, to send a threatening letter to a resident. The threat was not made on behalf of D&G or the Respondent, it was made by the Claimant, about the Claimant and about what steps he personally would take against Ms Rogers.[88]We make the following observations and findings about the other matters discussed at this meeting:(i) Taking photos of Ms Rogers from the CCTV. Whilst we may accept that Ms Rogers was entitled to be in her home without the Claimant taking photos of her, the Claimant had never been told that he ought not to take photos and had been asked to do so in the past as part of his responsibilities. Further, the image relied upon was already being recorded as CCTV so he was simply duplicating that image. Most importantly, there was no policy in place that the Respondent or its managing agent could show us that suggested that this was a clear, enforced policy at the workplace or that the Claimant had received training and instructions to this effect.(ii) Failing to arrange a handover It is clear that the Claimant knew that taking leave at the last minute when his colleague could not cover would cause difficulties. He arranged for cover. We find that he had no reason to know that he could not use Abbatts. The fact that Claibon had been used most recently is not sufficient. We accept that he initially told the investigation that he had used them because Paul told him to and that Paul refuted this saying that he had told the Claimant to call an agency. There was no clear handover policy in place or any policy regarding what ought to happen if leave was taken at the last minute. The Claimant had therefore not breached a particular policy or procedure. That said, we accept that although someone being off sick would cause a similar problem would arise, this was not that situation and the Respondent was entitled to approach the absence and the explanation for it differently given that the Claimant was choosing to take last minute leave when someone does not choose to be off sick. However, the fact that the Claimant did not breach a policy does not mean that he acted reasonably in these circumstances. There were a myriad of ways, short of having to come in on his day off, that would have made his absence less disruptive such as ensuring access to the key fobs and making sure the correct people were aware of his impending absence given that this was a bank holiday. He had worked there for years and knew what would be needed. We think it is reasonable for the Respondent to have serious concerns about the Claimant’s failure to enable a smooth handover even if it would have been more limited than normal. In this instance, the Claimant organised an agency but then failed to do more such as ensuring keys and fobs were properly accessible.[89]The issue of forwarding emails to the Claimant’s personal account was not pursued as they accepted he had a legitimate reason to have them on his email. Decision to Dismiss[90]We had no witness evidence from the Respondent as to the next stage of the process. Mr Fooks told us in his evidence that Mr Marshall was the decision maker and that the board had oversight of the decision. He had not included this in his witness statement and we did not hear from Mr Marshall. Ms Solaja was equivocal as to who made the decision (her or Mr Marshall). We have no doubt that had Ms Solaja not found gross misconduct, Mr Marshall would have overridden that finding. As we have indicated, we consider that the decision to dismiss was a foregone conclusion and had already been made during the email exchange between Mr Fooks and Mr Marshall on 30 August. This finding is compounded by the complete lack of witness statement evidence from the Respondent as to the fact that the Board were consulted at all or even that Mr Marshall made the decision.[91]We consider that Ms Solaja did not know about the emails between Mr Fooks and Mr Marshall, however we have no doubt that everyone withing D & G knew that Mr Fooks and Mr Marshall wanted the Claimant to be dismissed. Given that we heard evidence that if the client wanted something they would get it, we think that this taints the entire process. Dismissal letter[92]The Claimant was dismissed by letter dated 5/6 October 2022. The letter came from Ms Solaja. Each allegation was assessed as to whether it was misconduct or gross misconduct apart from the first one which concerned the sending of the cease and desist note using Mrs Rogers’ phone. The allegations were found as follows: “Potential breach of GDPR by the misuse of a leaseholder's personal information to send a Cease and Desist letter on the 29th August 2022 You also agreed that you are trusted with the personal data of residents and directors of Knightsbridge Court for the limited purposes of work. On the 29th August 2022 you used the personal information of a shareholder/leaseholder of Knightsbridge Court, provided to you for work related purposes only, to send a Cease and Desist letter which contained a number of serious accusations and a threat of legal action. This letter was also misleading in its nature by saying this letter has been served as a final warning, when you confirmed you had not sent the leaseholder any previous warnings. You had already forwarded this letter to Directors of Knightsbridge Court Management Company Ltd and D&GBM who advised they would not be forwarding this on whilst an investigation into your allegations was being undertaken. This is a GDPR confidentiality breach, where there is an unauthorised access to and use of personal data. Clause 13 of your Contract regarding Confidentiality and Intellectual Property states that you will not (except in the proper performance of your job) either during your employment or at any time after its termination, for whatever reason:• Disclose confidential information to any person• Turn confidential information to your own account You will use your best efforts to prevent:• The publication or disclosure of confidential information• Any misuse of such information. Your actions put the management of the block at risk as you are entrusted with personal information for work related purposes only and residents should not have their personal data used by employees for personal reasons. Having listened to all the evidence I have concluded that I believe you are guilty of this allegation against you.” Potential breach of GDPR by forwarding emails which you have sent to the Directors of Knightsbridge Court Management Company Ltd containing Directors' email addresses, to your own personal email account. I have therefore found you not guilty of this gross misconduct allegation. Potential breach of GDPR by taking photographs of CCTV footage of a leaseholder photographing the rubbish Taking photos of Sue Rogers was solely to enhance your complaints about alleged harassment. Taking a photo of a person, in this context, where they can expect privacy, such as inside their home or garden, is a breach of privacy laws. I have therefore found you guilty of this gross misconduct allegation. Failure to advise D&GBM of arranging a temporary member of staff from an unauthorized agency and falsifying your reason for contacting Abbatts rather than Claibon. I have therefore found you guilty of this misconduct allegation. Appeal[93]The Claimant then appealed against the decision. Ms Barham heard the appeal. Although it had the possibility of rectifying the decision it was not a rehearing of the case. Given that Ms Barham did not understand the basis upon which the Claimant had allegedly breached the GDPR, we consider that this was not a genuine appeal process. Ms Barham did hold an appeal meeting and did listen to the Claimant but we find that there were no grounds on which Ms Barham was going to overturn the original decision even if she had believed there to be unfairness or an incorrect decision reached. This is partly because she failed to comprehend the basis for part of the decision and partly because the decision had been made on 30 August and she was unaware of that and the basis for it. Conclusions Evidence issues
Conclusions
[94]The Respondent’s witness statements failed to deal with the following crucial evidence:(i) Any information about Mr Marshall’s decision making process(ii) The fact that Mr Marshall was the decision maker(iii) The relationship between Mr Fooks and Ms Rogers(iv) The process after the disciplinary investigation meeting including Ms Solaja’s drafting of the letter, the liaison with their advisors, the level of decision making between Mr Marshall/the board and Ms Solaja(v) The contractual relationship between D and G and the Respondent enabling Ms Solaja to make that decision[95]What the statements have were unequivocal statements that Ms Solaja was the decision maker which we believe to have been very misleading in these circumstances.[96]This has made it very difficult to believe the veracity of what the Respondent witnesses have told us as their statements do not include key evidence that was subsequently relied upon before us.[97]With regard to disclosure the documents disclosed by the Respondent on the third day in respect of emails between the two directors was crucial and no proper explanation has been given as to how two lawyers failed to disclose these emails as part of the disclosure process earlier in the proceedings. We were told on behalf of those instructing Mr Boyd, that the solicitor had spoken directly to Mr Marshall and he had indicated that he understood the rules of disclosure. Despite that he appears not to have complied with them.[98]We analyse the process that has been held out as the dismissal process, however it was of key importance to our final conclusions that neither Ms Solaja nor Ms Barham were able to properly identify the breach of GDPR and in Ms Barham’s’ case the breach of contract upon which they relied.[99]That said we do not have any reason to doubt Ms Santana’s notes of the meetings. We accept that Ms Santana’s notes are a broadly accurate representation of what was discussed. She does not suggest that they are a verbatim record of the meeting and the Claimant was asked to say what was missing from the minutes and has not done so. In addition it is clear that he made notes after the disciplinary meeting but has not disclosed them. Had he wanted to correct any issues with the notes he did have a copy of notes that he could have used to compare with the notes provided by Ms Santana. Protected Interest Disclosures analysis[100]The burden of proof in whistleblowing claims is on the Claimant to establish that he has made a protected disclosure and then that he suffered a detriment.[101]All of the disclosures relied upon were made to the Claimants employer. In reaching our conclusions regarding the public interest element of the disclosures we have carefully considered the case of Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979. In that case the Court provided guidance as follows:(a) The Tribunal first has to decide whether the worker subjectively believed at the time that the disclosure was in the public interest; and(b) If he/she did, whether that belief was objectively reasonable.[102]In summary, we do not conclude that the Claimant believed, at the time, that any of his disclosures were in the public interest. His emails were solely in relation to his own position at work and his working life which he considered was being made difficult by a resident. He did, on occasion, tangentially raise issues of health and safety but they were made in relation to the alleged bullying behaviour of Ms Rogers, they were not about any possible public health and safety matter even though he was complaining about rubbish. He was not complaining about the dangers of the rubbish, or the lack of a proper system for rubbish disposal. Instead he was concerned with Ms Rogers complaining about the rubbish and its disposal and his role within that.[103]We have born in mind that if someone has alleged a health and safety breach then the bar is relatively low to establish that it is in the public interest, however, in this case, the point is that the health and safety breaches that the Claimant alleges arise solely in respect of Ms Rogers’ treatment of him and they are, at best, vague as to whether they are raising health and safety issues. We analyse them properly below. However, in summary, they do not arise, for example, out of any risk arising out of the rubbish. The Claimant’s case was, for the most part, the opposite, that the concerns he was raising were that he was dealing with the rubbish properly and therefore Ms Rogers had no grounds for her complaints. He does on occasion say that her actions might prevent the proper collection of the rubbish, but we do not consider that this is information tending to show that there has been a health and safety breach. He also makes reference to his need to take breaks which we consider below.[104]The Claimant’s concerns are very clearly not about anyone else. He says that he is doing it on behalf of other porters and staff such as the cleaner but we had no evidence that he was alleging she behaved like this towards other people. He said on one occasion that her behaviour created more work for the cleaner but this is not, in these circumstances, sufficient to persuade us that he believed that the matter he was raising was in the public interest. His allegations are clearly all about him and his desire to make Ms Rogers stop complaining to him about the rubbish. In addition, in evidence before us he said that he would have been willing to continue working there because all he was trying to achieve was to get her to stop her behaviour towards him. He did not suggest anywhere in any of his correspondence or meetings that he was looking to stop her behaviour towards anyone else. We therefore consider that he did not actually believe at the time that his disclosures were in the public interest.[105]We have reminded ourselves that it does not matter whether a disclosure is made ‘in good faith’. There is no requirement for the Claimant to demonstrate that he did not make any of the disclosures for some type of personal gain. His reasons do not need to be in some way virtuous or altruistic nor does his motive matter. However, sometimes it is possible for the reasons behind the Claimant making the disclosures to shed light on whether he either genuinely or reasonably believed that the disclosures he was making at the time were in the public interest. We have concluded that he did not because he was so clearly focussed on getting one resident to leave him alone as it was disrupting his working life. His concerns were about that.[106]Even if he did, it was not reasonable to do so. We note that Mr Fooks’ interpretation of the Cease and Desist letter is that it was alleging Ms Rogers was committing a crime over a 2 year period. We are not sure that this is obvious from a first reading in any event but even if the allegation of ‘harassment’ is sufficient to amount to such an allegation, we do not consider that the Claimant believed that this was a criminal offence and again, if he did, given that we have found that there were no threats of physical violence, we find that the Claimant did not reasonably believe that Ms Rogers’ actions were criminal in nature and therefore that they were in the public interest. The fact that he sent a ‘Cease and Desist’ letter does not mean that he actually, reasonably or otherwise, believed that her behaviour tended to show either that a criminal offence or a health and safety breach or the breach of any other legal obligation was occurring, had occurred or was likely to occur. When this matter is reduced to the bare facts, this is a situation where two people have fallen out and at its highest, no longer want to work together. That is not in the public interest.[107]So as to be proportionate to the case we have considered each email in detail but set out our brief analysis about each one below given our overarching finding above.108. 20.9.20 – email - p 54-55 This contains an allegation that the Claimant is being told off when he takes his breaks or was being chastised by Ms Rogers for taking breaks. It is possible, that this could amount to information tending to show a breach of health and safety legislation or a breach of a legal obligation. We conclude for all the reasons given above however that the Claimant did not believe that this disclosure was in the public interest nor is it objectively reasonable for him to have believed it was in the public interest taking into account all the evidence we have heard.109. 27.10.20 – Emails – p 152 This email simply sets out the rubbish removal process for the building. It contains no information tending to show a breach of health and safety, legal obligation or criminal offence. For all the reasons given above we find that the Claimant did not believe that this disclosure was in the public interest nor is it objectively reasonable for him to have believed it was in the public interest taking into account all the evidence we have heard.110. 20.12.20 – email – 58 This contains an allegation that the Claimant is being prevented from taking appropriate breaks which could amount to information tending to show a breach of health and safety or a breach of a legal obligation. We conclude for all the reasons given above however that the Claimant did not believe that this disclosure was in the public interest nor is it objectively reasonable for him to have believed it was in the public interest taking into account all the evidence we have heard.111. 06.01.21 – email – p 59-60 This email simply sets out that Ms Rogers was taking photos of the rubbish and was herself leaving rubbish, possibly with a view to manufacturing that the rubbish situation was worse than it actually was. It contains no information tending to show a breach of health and safety, legal obligation or criminal offence.112. 15.10.21 – emails x 2 – p 61 This email alleges that Ms Rogers and Mr Fooks entered a part of the building that had restricted access. The Claimant outlines that he believes that access is restricted to some areas of the building. We accept that the Claimant did believe that the residents may not be allowed to access certain areas due to health and safety concerns because there was an alarm system to prevent people from using them. We also accept that this information could demonstrate concern on behalf of a wider group i.e. the residents as a whole as opposed to just himself or just Mr Fooks and Ms Rogers. However, we do not accept that the Claimant actually believed that the shed opposite the Medical clinic was one of those areas simply because it contained a medical waste bin and subsequent access to the basement and the staircase. We accept Mr Fooks’ evidence that this was a shed near the bins that could be accessed by residents and that there was no reason for the Claimant to restrict access to it. We also consider that it was not reasonable for the Claimant to believe that Ms Rogers and Mr Fooks’ health and safety or the health and safety of the other residents was at risk because they had entered this part of the building. As with all the other emails, the Claimant was raising this concern because he did not like Ms Rogers’ interference ( as he saw it) with the way the rubbish was stored and disposed of. His focus was solely on his own working life, and he did not consider anything to do with the public interest.113. 16.10.21 – email – p 62 This email describes Ms Rogers’ moving the rubbish in a way that the Claimant did not like. It does not contain information tending to show any breach of health and safety, a legal obligation, or a criminal matter.114. 6.8.22 – email – p 68[115]This email simply sets out that Ms Rogers was taking photos of the rubbish and her putting furniture in the courtyard. It contains no information tending to show a breach of health and safety, legal obligation or criminal offence.116.19 August 2022 – p 84 This email gives the Claimant’s account of what occurred on 19 August. It describes an argument between the Claimant, Ms Rogers and Mr Fooks and allegations about how James Rogers disposed of rubbish. It contains no information tending to show a breach of health and safety, legal obligation or criminal offence.117. 23.8.22 – p 82 and p 93 There are two emails of this date. One email refuses to provide Ms Phillips with more information or examples of what he means by ‘mocking’. It contains no information tending to show a breach of health and safety, legal obligation or criminal offence. The second email alleges that Ms Rogers deliberately kicked up the carpet in the south lobby which damaged it and meant that the cleaner had to spend time and effort fixing the carpet. He also alleges that Ms Rogers is doing this deliberately in order to blame the porters for the mess. At no point in this email does the Claimant provide information which tends to show a breach of health and safety, a legal obligation or a criminal offence. The Claimant’s concerns regarding the carpet are that it has been damaged and the cleaner had to spend more time on sorting it out. He does not suggest it is a health and safety hazard. The Claimant has not explained to us what legal obligation he considers Ms Rogers was breaching by making a mess. We do not consider that he believed, reasonably or otherwise, that her actions were anything other than a nuisance to him and his colleagues.118. 30.8.22 – emails between A Phillips and N Fooks – p 81 This was not a disclosure of information by the Claimant as it is emails between two other people..119. 30.8.22 -screenshot – p 94 It was not clear during these proceedings as to whether the Claimant relies upon the WhatsApp messages on this page which is a message from the Claimant to Ms Rogers attaching the Cease and Desist letter and her apparent response where she asks him to identify the acts of harassment he is relying upon. The message from her to him cannot be a protected disclosure by him. The cease and desist letter does contain information that could tend to show breach of a legal obligation or a criminal offence in that it alleges that Ms Rogers is harassing the Claimant. However, the fact that he alleges a criminal offence of harassment does not mean that he reasonably believed it was occurring or that it was in the public interest. We find that the Claimant did not actually believe that sending this letter and making the allegations therein was in the public interest. If we are wrong we do not consider that this belief was reasonable. The Claimant’s subjective view was that Ms Rogers was making his working life difficult by constantly complaining about the disposal of the rubbish and he was unfairly monitoring him and complaining about him and confronting him on this issue. He did not, at any point, believe that his issues with Ms Rogers and his complaints about them were about anything other than making sure that she stopped making his own personal working life difficult. He did not at the time of sending this letter believe that she had physically assaulted him. He did not say so at the time and we have found that he has only raised this since his suspension. He believed at the time that she was annoying him and making his life difficult. Even if he subjectively believed that this amounted to the crime of harassment that is not a reasonable belief taking into account all of the evidence he has given us. At best, his evidence to us is that at the time Ms Rogers was behaving unreasonably regarding the rubbish and he was worried that her complaints might get him into some sort of trouble and that her behaviour was making his working life unhappy. It is not reasonable for someone to conclude on this basis that the person involved is committing the crime of harassment. Finally, we do not consider that he actually believed that his cease and desist letter was in the public interest. As found above we do not consider that he actually believed Ms Rogers’s behaviour amounted to the crime of harassment. Even if he did, objectively speaking it was not reasonable for him to believe that and therefore believe that it was in the public interest based on the facts as we have found them.[120]Given that we have concluded that the Claimant did not make any protected disclosures, the Claimant’s claims of detriment and automatic unfair dismissal must fail.[121]However, given that it feeds into our findings regarding the ‘normal’ unfair dismissal claim and the Claimant’s contributory fault towards his dismissal, we also considered the issue of whether any of the emails caused any of the detriments or the dismissal. Detriments and causation[122]Of the detriments we have found that the first two are not made out factually namely:• Ignoring and not addressing or remedying the issues in the protected disclosure sent to Amy Phillips in August 2022• Sending the Claimant and unfavourable performance review called a Staff Self Review.[123]Ms Phillips did not ignore the email dated 19 August. She invited the Claimant to an interview and asked him for more details. His response was that she ought to know what had happened and he did not attend a meeting. In terms of failing to remedy the situation. We accept that in the past Ms Phillips had spoken to Ms Rogers about the situation and assisted the Claimant before and therefore he had no reason to believe that she would not on this occasion.[124]As found above, there was nothing unfavourable about sending the Claimant a blank review form for him to complete. It did nothing to indicate poor performance or a desire to discipline him. This claim is entirely unfounded.[125]The decision to suspend and dismiss the Claimant have different tests as to how ‘influenced’ they must be by any disclosures. Dismissal cannot also be a detriment in a claim brought against a corporate entity and can only be considered under the automatic unfair dismissal claim.[126]As the Respondent has submitted In the case of Fecitt, the bar for causation was established as differing when considering whistleblowing detriment and whistleblowing dismissal. Simply put, a detriment claim will succeed under section 47B where a protected disclosure has “more than trivially” influenced the employer in subjecting the a worker to a detriment, whereas an automatically unfair dismissal claim will only succeed under section 103A where a protected disclosure is the employer’s “reason or principal reason for the dismissal”.[127]We find that the decision to suspend the Claimant was motivated by two primary factors:(i) Him sending the cease and desist letter to Ms Rogers(ii) Him going on leave without there being proper cover[128]We base this conclusion on the correspondence between Mr Fooks and Mr Marshall on the 30 August when the decision to dismiss him was made. We conclude that the Respondent, linked the two issues as they considered that he sent the letter and then decided at the last minute to take an additional day’s leave. He changed his story about the reasons as to why he needed to take leave and we consider it was logical as at 30 August (without any investigation) for the Respondent to believe that he sent the letter and then left them in the lurch deliberately.[129]We consider that in respect of the above test, were the Claimant to have shown that he had made a protected disclosure by sending the cease and desist letter,, the detriment of suspension would certainly have been more than trivially influenced by his decision to send the cease and desist letter to Ms Rogers. However, we find that it was the fact and manner of sending the letter as opposed to the content of the letter that caused the Respondent to suspend the Claimant. It was a wholly inappropriate method of communicating with a resident, the Claimant knew that Ms Phillips had refused to send it, and it made wholly unfounded legal threats against the resident. In addition we accept that Mr Fooks was particularly troubled by the fact that the Claimant had chosen to send it directly to Ms Rogers when they had never before communicated by phone. Automatic Unfair Dismissal[130]With regard to the reason for the dismissal. We had no evidence from Mr Marshall as to what the reason for dismissal was. We consider, on balance, that on 30 August he reached the decision to dismiss the Claimant by reason of gross misconduct for the reasons set out in Mr Fooks’ email to him of the same date which were:(i) He took time off without permission(ii) Not leaving keys or fobs as a handover(iii) Using the wrong agency that was more expensive(iv) Sending the cease and desist letter being a fundamental breach of GDPR using Sue’s personal data(v) The flat invasion of 31 and his assistance to the subletting(vi) Being dishonest with Amy[131]We find that these were the real reasons the Respondent decided to dismiss the Claimant on 30 August which is when we find the decision to dismiss was made. The fact that it was communicated later to the Claimant and other reasons were given to the Claimant does not change the fact that these were the reasons for the decision to dismiss.[132]To succeed with a claim for automatic unfair dismissal, the Claimant must establish that any one of his relied upon protected disclosures was the “reason or principal reason for the dismissal”. The only reason on the above list which relates to one of the relied upon disclosures is the sending of the cease and desist letter. We find that it was one amongst many reasons and was not the principal reason. Further, as outlined above, it was not the content of the cease and desist letter per se, but the manner and method of sending the letter, including the use of Ms Rogers’ phone number, which formed part of the reasons for dismissal. The apparent legal allegations contained therein were in effect, ‘shrugged off’ by Mr Fooks as he recognised that they were not well founded given his understanding of criminal law. Therefore it was not the content of the letter that motivated the Respondent’s decision to dismiss.[133]We therefore conclude that the content of the cease and desist letter i.e. any information therein, was not the principal reason for the Claimant’s dismissal and therefore even if it was a protected disclosure (which we have found it was not), the Claimant’s automatic unfair dismissal claim would not succeed. Unfair Dismissal – Employment Rights Act 1996[134]As set out in the legal section above, the main case in this matter remains Burchell which requires a three stage consideration of the situation in order to decide whether the decision to dismiss is within the range of reasonable responses for an employer in all the circumstances. Any such conclusion must be based on a reasonable investigation and follow a reasonable process. Overall it shall be determined in accordance with equity and the substantial merits of the case.[135]We consider that the decision to dismiss was made by Mr Marshall and Mr Fooks. Using the case law that Mr Boyd referred us to, we consider that para 22 of Gestmin SGPS SA v Credit Suisse (UK) Ltd and other 2013 is pertinent: “In light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollection of what was said in meetings an conversations, and to base factual findings in inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though it’s utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”[136]The evidence in this case is such that we take the words that were sent between two lawyers as being representative of what they believed and thought at the time and the reasons for their actions.[137]Mr Fooks gave oral evidence, directly contradicting Ms Solaja’s witness statement, that Mr Marshall was the ultimate decision maker, even after the now relied upon investigation and disciplinary process. If we accept that evidence (and Ms Solaja did not give oral evidence that contradicted this position), then even if the Respondent had convinced us that there was the possibility that the reason for the decision made on 30 August was open to change and that their decision on 30 August was provisional as to opposed to definite; we had no evidence from the decision maker as to why he made the decision to dismiss and therefore rely upon the words of the emails.[138]We conclude that the reason for the Claimant’s dismissal were those set out in Mr Fooks’ email to Mr Marshall dated 30 August and that the decision to dismiss was made as at that date therefore before any procedure or investigation had taken place at all. In the absence of any evidence from the decision maker, we find that his decision was based on the reasons given in those emails and this remained unchanged despite the subsequent meetings and process followed with the Claimant. We accept however that the reason was misconduct which is a potentially fair reason under the Employment Rights Act.[139]Any such decision was both substantively and procedurally unfair. The process that followed was a process taken after the decision had been made and one used simply to ‘shore up’ or attempt to justify the decision already made. There was no fair investigation and no fair process followed.[140]The alleged gross misconduct matters that were investigated by D&G and subsequently used as the reasons by Ms Solaja for dismissal differ from the reasons in Mr Fooks’ email and accepted by Mr Marshall as being acts of gross misconduct. Therefore at least part of the reasons justifying the Claimant’s dismissal were never investigated and never put to the Claimant.[141]For the purposes of completeness we have made finding in respect of the process below and the information gained as a result in order to assess whether the subsequent investigation and disciplinary process establishes that the Respondent could fairly have dismissed the Claimant in any event had they followed a fair process. General[142]The written correspondence complied with ACAS rules in that it set out what the meetings were, whether the claimant could be accompanied, what the possible outcomes were and whether the claimant had the right to appeal. Investigation[143]The investigation meeting with Mr Witham was not an unreasonable meeting nor was it procedurally unfair. The Claimant did not have a right to accompaniment at the meeting.[144]After the meeting, when the Claimant said in response to the allegation about booking Abbatts instead of Claibon that Paul had told him to, Ms Santana spoke to Paul Hayward. Paul explained that he had spoken to the Claimant but had just told him to book an agency without mentioning a name. This was referred to as a statement by Mr Hayward. Subsequently the Claimant has spent considerable energy proving that a statement was not made. We consider this is based on a misunderstanding of the word statement. Mr Hayward confirms to the Claimant that he did speak to Ms Santana and did tell her what she has written in the file note.[145]In addition following this meeting they dropped some of the allegations against him having accepted his explanation with regard to some matters. Disciplinary meeting[146]We conclude that the following aspects of the disciplinary meeting were not procedurally fair and fell outside the range of fair processes:(i) The Claimant was not given enough time prior to the disciplinary hearing in order to allow the attendance of Mr Fooks when Mr Fooks’ attendance was unnecessary. We set out above why we think it was reasonable to give the Claimant more time.(ii) Mr Fooks attended the disciplinary hearing. It was clear that his presence was unnecessary and we have not had an explanation as to why Mr Marshall could not attend in his stead other than his unavailability which has not been explained at all. We had no explanation for example as to how long he was busy for or why he could not rearrange his obligations. Given Mr Fooks’ relationship with Ms Rogers it is clear that he could not be objective in respect of how he viewed the situation. Had a decision yet to be made, his presence even if as an observer, clearly suggested that he would influence the outcome.(iii) The GDPR breaches were not properly explained to the Claimant. It is clear from their evidence to us that the people hearing the disciplinary meeting and the appeal did not understand what the basis for the GDPR breach allegation was other than saying that the Claimant ought not to have used Ms Rogers’ phone number to send the document.(iv) What the Claimant had done to breach the GDPR was not properly explained to us in these proceedings by those purportedly making the decision, again confirming to us that they were not the decision makers. Decision to Dismiss[147]As set out above, our primary finding is that the decision to dismiss was made by Mr Fooks and Mr Marshall before any fair process or investigation was undertaken and is therefore unfair.[148]Even if the Respondent had taken a decision based on the investigation and process that was undertaken, we conclude that the disciplinary process was not reasonable in all the circumstances of the case. The disciplinary process was not reasonable due to the failure to allow the Claimant sufficient time to consider the case against him prior to the disciplinary meeting, Mr Fooks’ attendance at the meeting, and the failure to properly explain and understand the basis for the allegations of breach of GDPR before reaching a decision as to whether he had somehow behaved in a way which breached it.[149]Taking this in conjunction with the fact that the reasons for dismissal given to the Claimant in his dismissal letter differ from the reasons that were actually the reason the Claimant was dismissed, we conclude that the Respondent has provided us with insufficient evidence to reach a conclusion that they would have fairly dismissed the Claimant in any event had they followed a fair procedure. We simply do not know, and cannot surmise with any reliability, whether if they had investigated the actual reasons for the Claimant’s dismissal as set out by Mr Fooks’ email to Mr Marshall, it would have led to his dismissal or not. In reaching this conclusion we have also born in mind the fact that the Claimant had never been disciplined about his behaviour towards Ms Rogers prior to 19 August suggesting that D&G and the Directors of the Respondent, who were fully aware of what was happening and the number of emails the Claimant was sending complaining about Ms Rogers, did not consider this behaviour misconduct. If they did, they did not appear to consider it gross misconduct as it had continued without reprimand, for two years. We have also born in mind the evidence given by Ms Barham that had the Claimant posted the Cease and Desist letter (as opposed to sending it using the porter’s phone) she would not have considered it gross misconduct.[150]In conclusion we consider that the burden is on the Respondent to establish that the Claimant would have been dismissed in any event even if a fair process had been followed. Given the contradictory evidence we had in respect of exactly why the decision was reached, the fact that matters which have not been evidenced at all were relied upon on 30 August and the fact that some of the matters that were purportedly relied upon following the investigation have not been established as gross misconduct before us, we consider that we do not have sufficient evidence to determine that the Claimant would have definitely been dismissed within a certain period of time had a fair process been followed.[151]Section 123(6) of the Employment Rights Act 1996 (ERA) states that: ‘Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’ In Nelson v BBC (No.2) 1980 ICR 110, CA, the Court of Appeal said that three factors must be satisfied if the tribunal is to find contributory conduct:(i) the conduct must be culpable or blameworthy(ii) the conduct must have actually caused or contributed to the dismissal, and(iii) it must be just and equitable to reduce the award by the proportion specified.[152]In respect of whether the Claimant has behaved in such a way as to contribute to his dismissal however we find as follows:(i) The Claimant had clearly, fundamentally, breached Clause 13 of his contract of employment. He used Ms Rogers’ phone number which he knew was personal data (hence not leaving access to the phones etc for the cover he organised) in a way that was not in the proper performance of his job, was turning such confidential information to his own account and was clearly a misuse of that information. The Claimant knew that his line manager did not think it appropriate to send Ms Rogers the letter and he knew that he was using personal data on his own account, to settle a personal dispute with Ms Rogers. He knew that the phone numbers amounted to personal data and we do not accept that he was ignorant to the fact that sending such a letter was an inappropriate use of that number in these circumstances. Clause 13 was a clause he knew about. His action of sending a resident a cease and desist letter in this way and taking into account all of the circumstances was wholly inappropriate and a breach of that clause and therefore of his contract of employment.(ii) The Claimant had not taken appropriate steps in arranging a handover for his day off. There was no obligation for him to come in on his day off but there were many things, short of that which he must have been able to do and which were not done to ensure that the disruption that occurred would have been reduced. We believe that it was reasonable for the Respondent to conclude he had made the decision to take the time off in order to avoid any fallout from sending the cease and desist letter and he took too few reasonable steps to mitigate the impact of his short notice leave. The situation caused considerable difficulties for the tenants of the building on the day in question. The fact that the Claimant arranged cover does not detract from the fact that there were further steps he could have taken to reduce the disruption.(iii) The Claimant was not consistent concerning the reasons for taking the last minute leave. He had been dishonest to Amy in his explanations as to why he was taking the time off.(iv) He used derogatory language about Ms Rogers and her son on several occasions, and all of his actions and language suggested an unjustified vendetta or grudge against Ms Rogers indicating that he could not have a good working relationship with them which would have been essential had his employment continued given that this was Ms Rogers’ home. We accept that it was behaviour by the Claimant which contributed to his dismissal.[153]We consider, having carefully balanced this amongst all the facts of the case, that all of these behaviours amount to culpable or blameworthy conduct. The above conduct contributed to Mr Marshall and Mr Fooks’ decision to dismiss on 30 August. We have considered whether it is just and equitable to reduce any award and if so by how much. We consider that, when taken together and given the significance of his inappropriate behaviour towards a resident in their own home, in breach of his contract of employment, it is just and equitable to find that any compensatory award should be reduced by 80%.[154]We award a 25% uplift on any damages awarded to the Claimant for the Respondent’s failure to follow the correct ACAS procedure given that we conclude that the Respondent made the decision to dismiss the Claimant without having followed any procedure whatsoever.[155]The order of relevant adjustments is as follows:(i) ACAS uplift(ii) Contributory fault[156]The matter has been listed for a remedy hearing on 3 November 2025.