Employment Judge P KlimovMs Zakia Tahir (instructed by solicitor) for respondentDate 18 October 2024
JUDGMENT
The judgment of the Tribunal is as follows: The claim was not presented within the applicable time limit, but it was not reasonably practicable to do so. The claim was presented within a further reasonable period. The claim will therefore proceed. JUDGMENT having been announced to the parties at the hearing on 15 April 2024, and written reasons having been requested by the respondent on 15 April 2024, in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
REASONS
The law
[1]This hearing was a preliminary hearing (in public) to determine whether the Tribunal has jurisdiction to consider the claimant’s claim pursuant to s.111(2) ERA.[2]On 17 January 2024, EJ Brown issued various case management orders in preparation for the hearing, including, by 10 weeks from 17 January 2024, for the claimant “to submit a written statement, setting out his evidence regarding when he brought his claim, whether it was presented late, why he did not bring his claim earlier and why he says the Tribunal should extend time for his claim.”[3]At the hearing, the claimant was represented by Mr I Taylor, his trade union representative, and the respondent by Ms Z Tahir, a solicitor. I was referred to various documents in a 74-page bundle, the parties submitted in evidence.[4]The claimant submitted his witness statement on the morning of the hearing, together with one additional one-page document. His witness statement was short – 22 paragraphs. I adjourned the hearing for 15 minutes to allow Ms Tahir to consider the statement and make her representations whether it should be allowed to be admitted in evidence in light of its late submission. Upon returning to the hearing, Ms Tahir confirmed that the respondent had no objections to allowing the claimant’s witness statement. I allowed it in evidence. The claimant was then sworn in and cross-examined by Ms Tahir on his witness statement.[5]Upon hearing the claimant’s evidence and closing submissions by Mr Taylor and Ms Tahir, I announcement my judgment with reasons orally. I issued a written judgment on the same day, however it might not have yet reached the parties.
The Facts
[6]The claimant was employed by the respondent, as an Operational Postal Grade (a postman), from 11 September 1978 until 26 April 2023, when he was dismissed for alleged gross misconduct.[7]Early conciliation started on 19 May 2023 (Day A) and ended on 13 June 2023 (Day B). The present claim form was presented on 5 October 2023. Accordingly, upon the application of s.207B of the Employment Rights Act 1996, the end date of the primary 3-month time limit was 19 August 2023 (25 July 2023 (3 months less one day from 26 April 2024) + 25 days (the period beginning with the day after Day A and ending with Day B). Therefore, on the face of it, the claim was submitted 48 days out of time.
Relevant facts
[8]However, the claimant’s evidence, which I accept, is that following receipt of the ACAS early conciliation certificate on 13 June 2023, he promptly (within the primary 3-month time limit) submitted his ET1 online and received a submission reference number (222023588500). However, it appears that something had gone wrong with the processing of his claim form by the Tribunal. The claimant did not receive the standard Acknowledgement of Claim letter, and no case number had been assigned to his claim.[9]In September 2023, the claimant approached his trade union representative to enquire whether his claim was handled as part of a larger running dispute between the respondent and the trade union, and, as other similar cases, - stayed pending the outcome of an independent review by Lord Faulkner.[10]The union representative asked the claimant for his claim’s case number. The claimant gave the submission reference number. His union representative said that there should be a different number, the case number, and advised the claimant to speak with the Tribunal to get his case number.[11]Shortly after that, in late September – early October, the claimant called the Tribunal and was told that, although the Tribunal recognised his details from the submission reference number, it could not find any records of a registered case number against that reference number.[12]The person at the Tribunal, with whom the claimant spoke on the phone, told the claimant to re-submit his claim form, which the claimant did online on 5 October 2023. He received a new submission reference number (2202358600). The claim form (“the second ET1”) was processed by the Tribunal, and on 2 November 2023 the standard Acknowledgment of Claim letter was issued to the claimant with the assigned case number: 2215285/2023.
The Law
[13]Section 111 of the Employment Rights Act 1996 (“ERA”) states: 111.— Complaints to employment tribunal .(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Application of Section 111(2)(b)[14]The following key rules can be derived from the authorities:a. s.111(2)(b) ERA “should be given a liberal interpretation in favour of the employee” — Marks & Spencer Plc v Williams-Ryan [2005] EWCA Civ 470, [2005] I.C.R. 1293, [2005] 4 WLUK 376.b. what is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. Lord Justice Shaw said in Wall’s Meat Co Ltd v Khan 1979 ICR 52, CA: “The test is empirical and involves no legal concept. Practical common sense is the keynote….”.c. the onus of proving that presentation in time was not reasonably practicable rests on the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint” — Porter v Bandridge Ltd 1978 ICR 943, CA.d. if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable. When assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have made - Lowri Beck Services Ltd v Brophy 2019 EWCA Civ 2490, CAe. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable”. Meaning of ‘reasonably practicable’[15]Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.[16]In Wall's Meat Co Ltd v Khan Brandon LJ explained it in the following terms: “… The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical … or the impediment may be mental, namely, the state of mind of the complainant of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.” (Pages 60F-61A)[17]The focus is accordingly on the claimant's state of mind viewed objectively.[18]In Software Box Ltd v Gannon 2016 ICR 148, EAT, the EAT said that, as a matter of principle, the fact that a complaint was made within time and then rejected did not and should not preclude consideration of whether the tribunal should have jurisdiction in respect of a second claim on the same ground. S.111 ERA required consideration of the complaint which was made, as and when it was presented. Referring to Wall’s Meat Co Ltd v Khan, the EAT stated that the focus should be on what was reasonably understood by the claimant and whether, on the basis of that understanding, it was not reasonably practicable for her to bring the second claim earlier.[19]The EAT revisited this question in Adams v British Telecommunications plc 2017 ICR 382, EAT, confirming that the focus in such a situation must be on the second claim, and that the fact that the claimant was able to present an ET1 within time does not preclude the discretion being exercised. The question for the Tribunal, in those circumstances, was not whether the mistake she originally made was a reasonable one but whether her mistaken belief that she had correctly presented the first claim on time and did not therefore need to put in a second claim was reasonable having regard to all the facts and all the circumstances. Analysis and Conclusion[20]As I stated above, I accept the claimant’s evidence that he had submitted his original ET1 containing the present complaint of unfair dismissal within the 3- month time limit. I have no good reasons not to accept his oral evidence. Ms Tahir did not challenge the truthfulness of the claimant’s evidence in crossexamination, either.[21]Furthermore, in his ET1 the claimant provided the following additional information in box 15: “i am computer illiterate and having help filling this form in , i had tried myself in June and thought it was ok , my union asked for application number of case as all cases against Royal Mail were put on stayed until December , i was given a case number 222023588500 , i called the tribunal and they cant locate my claim so asked me to restart my claim again which i have done and would like the tribunal judge to understand my predicament and concerns, my mental state with stress and anxiety have taken its toll with looking after my brother and losing my job and would ask for compassion in these circumstances on your timescales , thank you.” which further supports his oral evidence.[22]Having submitted his original ET1 in June 2023 within the primary limitation period, there was simply no reason for the claimant to submit his second ET1, until he was told by the Tribunal in late September/early October that his original ET1 could not be located and that he needed to re-submit his claim. Therefore, until the claimant came to understand that his original ET1 had not been properly registered by the Tribunal, it was not reasonable to expect him to submit the second ET1. There was no need for him to do that.[23]The fact that the claimant did not receive the standard Acknowledgement of Claim letter from the Tribunal after he had submitted the original ET1, in my view, is not sufficient for me to conclude that it was reasonable to expect the claimant to submit his second ET1 before 19 August 2023.
The Law
[24]Firstly, delays of several weeks, and sometimes several months, in processing by employment tribunals of submitted ET1s are, unfortunately, not unusual. Secondly, the claimant’s evidence, which I accept, is that at that time he thought that his claim had been included in the pool of similar conduct dismissal cases and stayed pending the outcome of Lord Faulkner’s review. Therefore, it was not unreasonable for the claimant not to enquire with the Tribunal about the status of his claim until after he had had the conversation with his trade union representative in late September – early October 2023.[25]I, therefore, find that it was not reasonably practicable for the claimant to submit his second ET1 before the end of the period of three months beginning with the effective date of termination.[26]Although the claimant could not recall the exact date when he called the Tribunal and was told that his original ET1 could not been found and that he needed to re-submit the claim, it was, on his evidence, which I accept, in late September – early October.[27]Importantly, the claimant’s evidence, which I accept, is that he submitted his second ET1 promptly after that call. He submitted the second ET1 on 5 October 2023.[28]I find that in the circumstances the claimant submitted his second ET1 within a reasonable period after the expiry of the primary 3-month time limit, because he did that promptly after being told by the Tribunal to re-submit his claim.[29]For all these reasons, my overall conclusion is that although the claim was not presented within the primary 3-month time limit, it was not reasonably practicable for the claimant to do so. However, the claim was presented within a further reasonable period. The claim will therefore proceed.
The Issues
[1]The claimant claims unfair dismissal. The respondent argues that the claimant was dismissed for gross misconduct, namely a violent act towards a coworker, meriting immediate dismissal without notice. The claimant says that the respondent unreasonably failed to take into account his length of service, the significant stress he was suffering related to his caring responsibilities; he says the incident was not an act of violence as characterised by the respondent; he says that the industrial action which was then occurring led to management taking a harsher approach than it has done in similar cases.[2]The Issues are set out in the Case Management order dated 25 April 2024:a. Were their reasonable grounds for the belief that the claimant had committed gross misconductb. At the time the belief was formed had the respondent carried out a reasonable investigationc. The respondent otherwise acted in a procedurally fair mannerd. Dismissal was within the range of reasonable responses. Witnesses[3]For the respondent I heard evidence froma. Mr Tipler, at the time the Operations Performance Leader SW London, who was the dismissing managerb. Ms Melanie Birch, Operations Development Director based at Farringdon, who heard the claimant’s appeal against dismissal.[4]I then heard evidence from the claimant and from his Union rep at the investigation hearing, Mr Richard Blackwell.[5]Before hearing evidence from witnesses, I spent two hours reading the witness statements and the documents referred to in the statements.[6]The judgment does not recite all the evidence I heard, instead it is confined to findings to the evidence relevant to the issues in this case. It incorporates quotes from my notes of evidence; these are not verbatim quotes but are instead a detailed summary of the answers given to questions. Where there is a page number reference after a quote, this is a quote from a document.
The facts
[7]At the date of his dismissal the claimant had worked continuously for the respondent for 44 years, starting at age 16. He had, which is uncontested, an “unblemished disciplinary record extending over 44 years” until the incident which led to his dismissal. Throughout his employment he received commendations from managers because of his good service and received awards for his good driving.[8]The claimant has had caring responsibilities for his brother, who suffers from dementia, for a number of years. His brother lives alone, and the claimant visits him every day and cleans, cooks, takes him to appointments, and generally looks after him. He has lasting power of attorney over his brother’s affairs.[9]On 8 February 2023 at 9.30 am the claimant called his brother, who sounded confused and upset. The claimant recognised these symptoms as serious – as he put it in his statement for the disciplinary process, the last time his brother was this poorly he had needed to call 999 and his brother had “ended up in hospital” (134). The claimant was worried, and he “rushed” to finish his round so he could leave work and check on his brother.[10]On returning to the depot, the claimant informed his manager Mr Haughton he would have to leave work explaining the reasons. This was agreed. Mr Haughton and other managers were aware of his caring responsibilities for his brother.[11]The Earls Court office where the claimant worked has limited parking for private vehicles. It was the norm for cars to park in front of each other, meaning many cars will always be blocked in. The depot had an informal system by which employees left their car keys in the vehicle or in the depot, meaning cars could be moved to allow blocked cars to exit.[12]At 11.45am the claimant went to leave the depot and found his car had been blocked. The car blocking him, belonging to Mr A, was locked, he checked the depot there were no keys. He asked a colleague and then Mr Haughton to call Mr A, neither were able to contact him. In a handwritten note written two days later, Mr Haughton says he told the claimant Mr A would be back at around 12.30.[13]Mr Haughton’s note records that he watched the claimant through a window trying to push and move two cars “but got no joy with that.” The claimant’s evidence is that he was ‘increasingly frantic’ at this point.[14]At around 12.30 Mr A returned to the deport in a post office van. Cctv shows the van stopping next to the claimant, who is gesticulating. The driver’s window was down, and the cctv shows the claimant leaning inside and grabbing the top of Mr A’s fleece jacket for a few seconds. A member of staff standing behind the claimant intervenes, and the claimant steps away, still clearly angry and speaking and pointing at Mr A. The claimant then attempts to walk back to Mr A’s van, but his colleague again intervenes, and the claimant walked to his car and gets in. Mr A then moved his car and the claimant drove out. The incident lasts about 20 seconds.[15]Mr Haughton was told about this incident, being told that the claimant “had just had a go” at Mr A. Mr Haughton spoke to Mr A and was told that the claimant “had a go at him and grabbed him…”. Mr Haughton then looked at the cctv, his note records that the cctv showed the claimant “waving his hands … he then lunged and grabbed [Mr A] quite aggressively.” (Mr Haughton’s note dated 10 February 2023, page 125).[16]Mr Whelan, the colleague who intervened, provided a statement – he says that the claimant “grabbed [Mr A’s] jacket saying I had hospital you can’t block people in and take your keys. I pulled [the claimant] away and he turned and said you can’t block people in” before getting in his car (118).[17]The claimant was spoken to when he came into work on 9 February by Mr Haughton. Mr Haughton’s note records that the claimant said “nothing had happened”. He also says that the claimant refused to leave work when told he was being suspended, to which the claimant replied all staff would walk out; he says that the claimant repeatedly refused to leave work until being told the police would be called (125-6) (the 9 February allegations).[18]In his evidence, the claimant denies saying ‘nothing happened’ or that he refused to leave work. He says that he said “I am saying nothing until I have union rep.” The respondent’s case is that the claimant did not mention a union rep.[19]The claimant was given a letter saying that he was being suspended from work for alleged violent behaviour and invited to a fact-finding meeting, he was told he could be accompanied by a colleague or a union rep (122-3). Subsequent letters confirming and extending his suspension all referred to “alleged violent behaviour”.[20]Mr A provided a statement on 10 February 2023. This stated that the claimant came towards him “aggressively, he grabbed my collar and [shook] me, shouted at me, saying ‘why did you block me’ … a few times. I said ‘sorry’. He shouted repeatedly don’t do it again”. He said that he the claimant removed his hand then grabbed his collar again, repeatedly saying why you block me, don’t do it again “…I was shocked…” (127).[21]The claimant’s union rep, Mr Blackwell was shown the cctv of the incident by Mr Haughton on 10 February. The claimant was never shown this footage at any stage of the disciplinary process, disciplinary hearing or appeal.[22]The claimant wrote a statement in advance of a ‘fact finding discussion’. This states: “Firstly I would like to apologise for my actions…”.[23]The statement says the claimant has never put his hand on anyone at work before, and he asked for the issue with his brother to be taken into consideration. He referred to the call with his brother, his caring responsibilities, the lasting power of attorney. He says the call with his brother “was not great and very worrying…”. He says that by the time he spoke to Mr Haughton, “my anxiety was multiplying … and it was affecting my mental state.” He described trying to push the cars, as Mr Haughton had observed. He said when this failed “all options” of getting to his brother had gone, “and my mind was all over the place.” He says that by the time Mr A returned “my emotions, anxiety, stress, frustrations and my mental state … took over”. He says he “reached in and grabbed his collar and started shouting at him.” He says that after his colleague said “leave it” he left the window but was still shouting at Mr A. He says that he was “angry but not violent.” (134-136).[24]The fact-finding discussion took place on 20 February 2023. The claimant described again what had happened, including trying to push the vehicle, his interactions with Mr Haughton; the notes record him saying “my anxiety was getting worse and so was my stress levels…” (138-9).[25]Mr Haughton’s view was that a potential sanction was dismissal, outside of his authority, the case was passed to Mr Tipler who on 23 March 2023 invited the claimant to a formal conduct meeting to address an allegation of “alleged aggressive behaviour”. He was told his clear record would be taken into consideration, but that one outcome could be dismissal without notice (145-6).[26]The claimant was sent the following documents in advance of the conduct meeting: the fact-finding meeting notes, statement of Mr A, statement from a passenger in Mr A’s van and a statement of the colleague who had intervened. The claimant’s own statement was not included, nor was Mr Haughton’s statement.[27]The meeting commenced with Mr Tipler recording the incident as grabbing another member of staff “in a violent manner”. The claimant reiterated his prior statements, he accepts he grabbed Mr A’s collar and shouted at him. The claimant was asked whether he had thought about getting a lift, or a taxi instead of waiting for Mr A to return. The claimant accepted he had not thought of this.[28]The claimant was asked if he wanted to say anything in mitigation, and referred again to his brother’s condition, “I look after him daily and at weekends, he needs prompting to do everything in life, I feed him…”. He referred to documents he had provided on his brother’s medical condition and power of attorney.[29]The claimant said “I have stated counselling … first class support over my mental health issues regarding my brother. I have been a postman for 45 years never been accused of violence I have never put my hand on anyone…”.[30]His rep referred to the claimant’s frustration and anxiety, the fact that this was “totally out of character” and referred to a supportive petition of colleagues also provided by the claimant at this meeting. He referred to the claimant’s apology, that he had taken responsibility.[31]The claimant was dismissed without notice for gross misconduct on 29 March 2023; the report (167-70) states:a. The claimant’s brother had dementia and “was distressed”b. The claimant “felt he needed to go and see his brother”c. He knew his car was blocked in at 9.30am, he had “ample” time to find alternative means of travel “but chose not to”d. The claimant shouted at Mr A and grabbed him by the collar, a colleague intervenede. The next day the claimant said ‘nothing had happened’f. The claimant refused to go home when asked to do so 3 times, saying other staff would walk out – “demonstrating a lack of respect for his colleagues, his manager or the business.”g. The claimant only left when threatened with the police being calledh. If his colleague had not intervened “the outcome would have been far worse due to the nature of [the claimant’s] attack”i. It was only when the claimant became aware of cctv footage and witness statements that he changed his story as “… he was as he was unable to deny his attack, demonstrates [the claimant’s] dishonest nature.”[32]At this stage I note the following: of the findings by Mr Tipler above at (e), (f), (g), (h) and (i) - the 9 February allegations - no questions were asked of the claimant on these points at the investigation interview or disciplinary hearing. The claimant had not seen Mr Haughton’s statement and so was unaware these allegations had been made.[33]I also note that although the decision contains a chronology of events, including when statements were provided, the claimant’s statement does not appear in this chronology and the body of the report does not refer to this statement or its contents.[34]The decision records that Mr Tipler considered the claimant’s mitigation, but this did not provide a “justifiable explanation as to why he would attack another member of staff, lie to his manager, refuse a reasonable request and incite other members of staff. As an employer … [the respondent] cannot continue to employ someone who shows behaviour traits that are in breach of the business standards when they are unable and/or unwilling to understand the seriousness of those actions.”[35]Mr Tipler states that a penalty lower than dismissal is not appropriate as the claimant’s actions against Mr A, his failure to initially admit to them, his failure to follow a reasonable request from his manager to leave the premises, and comments regarding encouraging other members of staff to walk out “lead me to believe that [the claimant’s] behaviours are beyond correcting.”[36]The report concludes that the claimant’s “violent actions, threats, dishonesty, failure to respect his manager’s request and his encouragement to other members of staff to walk out is deemed such a serious offence ... clear gross misconduct, that I feel any penalty less than dismissal simply would not send out the right message to our own staff and managers.”[37]Mr Tipler states that the claimant’s 45 years’ service and clear conduct record were taken into consideration, but the “seriousness” of this conduct means that a lesser penalty is not appropriate. “Therefore, proven gross misconduct of this type has only one result and that is summary dismissal, this is because the trust has unequivocally been lost … concerning his total lack of ability to make the right decisions, violent conduct and dishonesty. This leaves me little option but to summarily dismiss…”.[38]In his evidence Mr Tipler accepts that the claimant may not have been sent Mr Haughton’s handwritten statement, he accepts it is not listed as an attachment to the disciplinary invitation at 146; he accepts that he used it as part of his deliberations. Mr Tipler now argues, notwithstanding that he relied on it, that “most of the statement is not relevant”, and not relying on it would not have changed his decision.[39]Mr Tipler accepts that the claimant was caring for his brother with serious medical issues, that he had evidence of this at the disciplinary hearing, and that this was a source of “considerable stress” to the claimant. He does not accept that this could cause a single lapse of judgment “As when we discussed the other options, what he could have done differently, and he did not take any of those opportunities, including borrowing a van. So, I accept there was an issue, but the way he handled this was what crossed the line …”. He accepted that the claimant was “not rational” at the time he tried to move cars, but “he should have handled it differently and not attack and show violence towards another employee”.[40]Mr Tipler accepts that he mentioned 4 separate offences in his decision: violent behaviour; a denial which demonstrates dishonest conduct; refusing to go home and the threat of unofficial strike action. He argues that the three non-violent offences “… all play into the background … but the key charge is violence supplemented by anger.” By choosing to say nothing happened “this adds dishonesty”. He said that if he had apologised at this stage “it could have” changed his decision “It would have been a consideration to apply.” He accepts that the claimant later admitted grabbing and shouting, but that he did not admit his acts were violent “… the failure to admit to violence, how can trust him…”.[41]Mr Tipler accepts he did not refer to an allegation of dishonesty during the hearing, he said that this is “background” and the decision was based on “violent acts, and he did not show honesty…”. He said the claimant’s act was violent and aggressive – there are mitigations which I can apply – for example an admission, an element of honesty is important …”.[42]Mr Tipler also says that the claimant exaggerated his brother’s health “to explain why he acted in the way he did”; in his statement he describes his reasoning: whether this was ”the real reason” why the claimant had to leave so urgently, he says he is “not sure” his brother was the reason he needed to leave, and he refers to the “tension” with Mr A related to the industrial dispute, the claimant was “playing up” his brother’s situation.[43]The claimant appealed the decision to dismiss, in summary arguing:a. the stress over his brother, his clear conduct record and length of service were “not reasonably taken into account”;b. a reasonable conclusion would be that this was a one-off incident which occurred because of his brother’s issues and high levels of stress;c. the report “makes a number of inaccurate claims and unfair assumptions which were aimed towards justify the most severe penalty rather than establishing facts.”;d. he had demonstrated regret and remorse;e. the conduct agreement 2015 aims for informal resolution or a corrective approach, “… each case must be judged on its own merits and in light of all the circumstances including the employee’s record and service and any mitigation with the aim of being corrective”, but no corrective approach was considered;f. the decision does not accurately reflect the claimant’s “vast” caring responsibilities “in supporting his brother’s daily needs” and the stress and anxiety which can resultg. the finding that the outcome could have been far worse had the colleague not intervened is “baseless and unreasonable”.h. it disputes that the use of “attack” is fair, saying no witness used these words but that Mr Tipler’s report “uses ‘attack/attacked/violent’ multiple times which does not fairly reflect the nature of the incident.”i. Attack implies an intent to harm Mr A, which is inaccuratej. The claimant’s “actual words” to Mr Haughton when asked about what happened was “Nothing, I want my rep with me.”, that this is a “bad choice of language” but “… is not a rejection of being open about what happened.”k. The statement about choosing not to find alternative means of travel demonstrates that Mr Tipler “has not been able to recognise the growing stress and deteriorating mental state” of the claimant that day.l. He was never asked about “taking staff with him”; had he been asked “he would strongly deny these allegations as untrue”m. There was no consideration of the claimant’s stress as a mitigating factor, instead Mr Tipler refers to his sympathy, but they were not taken “into the context of how they influenced his behaviour that day”n. The statement that the claimant’s behaviour is “beyond correcting” and truest has been “unequivocally lost” is in “direct contrast” to the claimant’s service, the fact he has expressed remorseo. The claimant’s statement of apology is not referenced in the investigation or Mr Tipler’s report and this statement is not included in the file for the disciplinary hearing or in the decision report “this statement is another crucial piece of evidence in determining … whether this was a one of incident or whether there is an ongoing issue with … behaviour…”p. The apology shows genuine acceptance of his behaviour, he apologises, and explains the stress-related issues which led to his actions;q. Mr Tipler has not interviewed key witnesses and “instead draws conclusions which are based on assumptions. This meant the investigation was nowhere near thorough enough…”r. “Only five specific questions” were asked at the conduct interview, meaning there was not a fair hearing.s. There were previous employees changed with aggression in the same office which were handled differently, referring to what he describes as a more serious event involving a postal worker called Chris Blair, who was involved in a fight but was not disciplined, instead transferred to Fulham Delivery Office.t. His multiple awards and certifications from Royal Mail since 1998 significant messages of thanks from management, and excellent sick record;[44]The appeal was heard by Ms Birch (193-200). Ms Birch had been employed for just over a year at this point, she had online training at the outset of her employment, and on her involvement with a HR investigation she spent 2-3 hours going through the applicable policies.[45]By the appeal hearing Ms Birch had the claimant’s written statement, it was provided by his rep who refers to the statement saying that it is clear he “recognises his fault” (167).[46]At the outset, Ms Birch said that the hearing would be a “rehearing”. The claimant’s union rep was invited to speak, and he reiterated and repeated the grounds of appeal. He reiterated the claimant’s apology “… his statement started with an apology to [Mr A]”, he referred to the claimant attending counselling, he is “adamant” it would not happen again, he referred to the stress of dealing with dementia “can be overwhelming”. He said that the words used in the allegations – attack, violent – do not reflect the nature of the incident.[47]Ms Birch asked one substantive question – was the claimant aware how Mr A felt? The claimant answered that he was, he had seen other incidents, and he had been the recipient of unwanted conduct himself.[48]Ms Birch accepted during the appeal that the claimant was not charged in respect of the 9 February incidents, the allegation of incitement of unofficial industrial action, the alleged “nothing happened” remark, allegedly refusing to leave work, alleged dishonest, and she did not take these allegations into account when deciding the appeal. For her “the crux” was whether the claimant threatened an employee.[49]Ms Birch did not watch the cctv footage because she was “… clear about the severity of the incident, so I did not feel I needed to watch it.” She did not interview other employees; she says she contacted HR to find out more information about Mr Blair but was told there was no record of him as an employee. Her evidence was that as everyone was “aligned” on the severity of the situation, she needed to “understand what was driving this behaviour.”[50]She argues that the principal reason why she upheld the dismissal is because when she asked how Mr A felt “… I felt he did not understand or consider how his actions made [Mr A] feel, he did not give me enough. If this was a one-off event so out of the ordinary, then normally you would understand [how Mr A. felt]. This did not come across in his answer.”[51]Ms Birch says she gained this viewpoint from the claimant’s denying the incident amounted to violent conduct, she considers he was saying that the incident was “not as serious as has been made out”, that he was “trivialising” the incident.[52]The decision to dismiss was upheld; the reasons include:a. Notwithstanding the stress the claimant was under that day, “the severity of the incident itself was significant. … Whilst I believe that [the claimant] understands that this reaction and his actions were not correct, I do not believe that he fully appreciates the impact of his actions on others”b. His long length of service: “I do not believe that a long length of service mitigates an individual’s behaviour that clearly contravenes” the respondent’s standardsc. His stress does not excuse unacceptable behaviourd. Ms Birch “notes” the claimant’s view that he has demonstrated remorse and has previous clear conduct and so can be trustede. The 2015 agreement – and the corrective approach: Ms Birch accepts that this is “… a view but … [the claimant’s] behaviour contravenes” the respondent’s expected standards.[53]On point (a) above, Ms Birch argues that she “can’t imagine” what it would be like to be a carer for someone who has a debilitating condition “… but there are lots of people who have significant issues who do not behave this way. I could not confidently say the risk of him returning was low risk … we are adults and need to take accountability”. She says that she was aware that the evidence shows the claimant was acting irrationally – trying to move the car – but she argues his answer “did not give me confidence … he did not articulate that he appreciated the impact, he was saying ‘these things happen’ and so he did not appreciate the impact of his actions.”[54]Ms Birch says that she considered a lesser sanction “however the incident that occurred and the lack of self-control” means she did not have the trust or confidence to reinstate him. She says she considered his length of service, “it is important, a huge thing, I did not take this decision lightly.”[55]In questions, Ms Birch accepts that she rejected the appeal because she considered that the decision to dismiss was reasonable. Her statement says that she did not feel need to undertake any further investigations because the disciplinary investigation was comprehensive. She accepts that the claimant alleged there were “inaccurate claims and assumptions”, she felt that she had “read all of the points which we went through … I was satisfied I had enough to make the decision … there are certain things we will not accept, and the way he behaved fits into this.”[56]The respondent argues the claimant’s apology is “self-serving” and designed to save his role, that he “does not apologise properly” as he is not apologising for “violent behaviour”, which he denies occurred. The claimant disagrees, arguing he was apologising for “what it says here, what happened.”[57]Another factor the claimant says is relevant is a grievance the claimant submitted against managers including Mr Tipler for what he contends is an unlawful deduction from his wages during industrial action. Mr Tipler says he was unaware of this at the time, that there was a lot of issues with staff and pay which were handled centrally. I accept that Mr Tipler did not have in his mind this grievance when making the decision. As his statement makes clear however, Mr Tipler believes that the fallout from the industrial action may be the underlying cause of the claimant’s act against Mr A.[58]Mr Blackwell argues that in his 30 years’ experience, and having seen the cctv, it was surprising that this issue was not dealt with informally; “I have come across many occasions of similar incidents in the workplace where the individuals can talk through mediation or informally…”. He says that because the claimant provided a written statement accepting responsibility for his actions, and based on previous similar incidents, he believed at the time that the disciplinary hearing would be primarily to address mitigation.[59]The claimant’s position and that of Mr Blackwell is that Cliff Blair does exist. They both say that when the fight involving Mr Blair occurred, Mr Haughton “kept it inhouse and Mr Blair was moved to another office… there was no formal process.” Mr Blackwell reiterated that Mr Blair continues to work at the Fulham delivery office “So I am surprised by [the respondent’s] statement” that there is no record of him.[60]Mr Blackwell argues that the respondent would “definitely” consider length of service and disciplinary record, and from this evidence would consider whether there was a likelihood of reoffending, along with a consideration of the seriousness of the offence. He says that these conversations would usually take place during the investigation interview “but we were not enabled to have this conversation”, he believes because of “tensions” between the union and management “so informal conversations were not happening.” He says that even so he expected the process to take into account the claimant’s clear conduct and length of service and he did not expect an incident like this, with this mitigation, to lead to dismissal.
The law
[61]S.98 Employment Rights Act 996(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, andb. that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— a. … b. relates to the conduct of the employee,(3) …(4) The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[62]Unfair dismissal – relevant case lawa. The ‘Burchell test’ - British Home Stores Ltd v Burchell [1980] ICR 303 (EAT). The test of ‘fairness’: a dismissal will only be fair if at the time of dismissal: i. the employer genuinely believed the employee has committed misconduct; ii. the employer has reasonable grounds for this belief; and iii. it had carried out as much investigation as was reasonable in the circumstances.b. The "range of reasonable responses" test - Iceland Frozen Foods Ltd v Jones [1982] IRLR 439: The s.98(4) test of ‘reasonableness’ is an objective one. Once it has determined that the employer’s belief in misconduct was genuine, the tribunal has to decide whether the employer's decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer, in those circumstances and in that business, might have adopted. The tribunal must not substitute its own view on whether or not the dismissal was reasonable for that of the employer.c. Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09: while the employer must prove that it had a genuine belief that the employee had committed misconduct; on whether the employer acted reasonably in doing so, the burden of proof is neutral.d. Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23: The ‘range of reasonable responses test’ applies to both the conduct of the investigation and the decision to dismiss; the tribunal is not to decide whether it would have investigated differently, but whether the investigation was within the range of investigations that a reasonable employer would have carried out.e. Chubb Fire Security Ltd v Harper [1983] IRLR 311): The tribunal cannot consider the ‘unjustness’ to the employee, the question is solely whether the employer acted within the rage of reasonable responses.f. Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677: the assessment of reasonableness is not conducting a "tick box" exercise, and the band of reasonable responses is not infinitely wide.g. Governing Body of Hastingsbury School v Clarke UKEAT/0373/07: Where an employee is suffering from ill-health which may be contributing to behaviour which may constitute gross misconduct, a failure to investigate the ill-health before dismissing may make the dismissal unfair (this is the case even if the employee’s explanation of that link may seem implausible - see City of Edinburgh Council v Dickson UKEAT/0038/09 – an employer must investigate any allegations of ill health rather than relying on its own option that there is unlikely to be a link).h. Dytkowski v Brand FB Ltd ET/2402856/19: where an employee alleges there is a link between a condition and aggressive behaviour, an employer should investigate that link. The investigation was important both to assess the culpability of the employee and to consider the likelihood of a similar incident occurring.i. Neary v Dean of Westminster [1999] IRLR 288 – the definition of gross misconduct: conduct that so undermines the relationship of trust and confidence ... that the employer should no longer be required to continue to employ them.j. St Mungo's Community Housing Association v Finnerty [2022] EAT 117: where a tribunal considers that the decision to dismiss is beyond the range or reasonable responses, it must consider the employer’s reasoning and explain why it is defective.k. Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626: although dismissal where gross misconduct has been found may be “almost inevitable", mitigating factors must be considered and that to assume that gross misconduct means that there cannot be mitigation is an error in law.l. Vincent (t/a Shield Security Service) v Hinder UKEAT/0174/13: A failure to consider any alternative sanction where an employee has a clean record and long service fell outside the band of reasonable responses.m. Strouthos v London Underground Ltd [2004] IRLR 636 CA: Having 20 years' service and no previous warnings was a relevant factor in determining whether a dismissal is fair '' … it all depends on the circumstances. The statements in McLay and Cunningham do not, in my judgment, exclude a consideration of the length of service as a factor in considering whether the reaction of an employer to conduct by his employee is an appropriate one. Certainly there will be conduct so serious that, however long an employee has served, dismissal is an appropriate response. However, considering whether, upon a certain course of conduct, dismissal is an appropriate response, is a matter of judgment and, in my judgment, length of service is a factor which can properly be taken into account, as it was by the employment tribunal when they decided that the response of the employers in this case was not an appropriate one.''n. Post Office v Fennell [1981] IRLR 221 (CA)): “Equity" demands that similar conduct should be dealt with in a similar way.o. Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 (EAT): Employer’s previous decisions will only be relevant to the fairness of the dismissal if: It has previously treated similar behaviour less seriously; so that employees have been led to believe that certain categories of conduct will not lead to dismissal; or Where employees in "truly parallel circumstances" arising from the same incident are treated differently.p. Taylor v Parsons Peebles NEI Bruce Peebles Ltd [1981] EAT IRLR 119: on mitigation, a reasonable employer would have taken account of the employee's long service and employment history, even in a situation where an employee had deliberately hit another.q. Arnold Clark Automobiles Ltd v Spoor [2017] IRLR 500, EAT: The dismissal of an employee with 42 years' exemplary service because of one isolated incident of physical violence was unfair, in part because the employer failed to take into account the circumstances of the offence and the employee’s service record.r. ACAS Guidance: An employer should consider before deciding on a disciplinary penalty the employee's disciplinary record, (including current warnings), general work record, work experience, position and length of service.s. Tesco Stores Ltd v S UKEATS/0040/19: a failure to properly consider mitigation took the investigation outside of the range of reasonable responses. Tribunals must consider the degree of relevance of that failure to the issue of sanction, whether or not the employee advanced any evidential basis which merited further inquiry, and the extent to which resultant further investigation could have revealed information favourable to the employee. Closing arguments[63]At the outset of day 2 I referred the parties to several dictionary definitions of ‘violent behaviour’, an allegation used interchangeably with ‘aggressive behaviour’ during the disciplinary process. The claimant’s case is that he believed he was being charged with aggressive conduct, which he says is a different charge to violent conduct, with potentially different consequences.[64]Dictionary definitions of violence include: “behaviour involving physical force intended to hurt, damage, or kill someone or something” “extremely forceful actions that are intended to hurt people or are likely to cause damage” “behaviour which is intended to hurt, injure, or kill people.[65]I raised this issue because I considered at this stage an issue in the claim may be whether it was within the range of reasonable responses to allege the claimant’s conduct, viewed within the range of a reasonable disciplinary process, amounted to violent conduct.[66]The claimant’s case is:a. He accepts he committed misconductb. There was a failure to properly consider the context of the claimant’s actions, his brother, his stress and anxietyc. Evidence was withheld or not discussed with him including the allegations in Mr Haughton’s statement, but these led to adverse findings making the decision “irrational” and “manifestly unfair”d. There was a failure to properly consider mitigatione. A “large part” of Mr Tipler’s thinking related to the industrial unrest being the reason the claimant acted this way, “natural justice” required this to be put to the claimantf. On appeal, there was no further investigation, the cctv was not watched, the appeal was “procedural box ticking”. The allegation of a lack of contrition is not sustainable given the claimant’s apology. Which led to conclusions outside of the range of reasonable responses that he had committed gross misconduct which cannot be mitigated, also leading to the finding there was no trust that he would not act in the same way in the future.[67]Mr Chaudhry accepts there were “issues” with the decision, these were rectified on appeal. Ms Birch “refocused on the aggressive behaviour.” Mitigation was taken into account. While the claimant argues he was suffering stress and anxiety which affected his mental health, “there is no Dr’s letter or OH report, the stress is not of that nature”. The stress within the claimant’s statement shows “the ordinary stresses of a person with caring responsibilities.” Mr Haughton’s statement makes it clear the claimant is stressed and frustrated, this was taken into account. He argues that the “critical point” is how the claimant reflected on his actions, his apology was limited.[68]On the issue of aggressive v violent behaviour, he argues that the focus was on aggressive behaviour, he says there was no tick box exercise, that consideration was given to length of service and his record; “their critical rational was based on how the claimant reflected on his actions.” And that trust was broken - violent actions, threats, dishonesty, failure to respect managers, resisting leaving, encouraging a walk out.[69]The respondent now accepts that the 9 February allegations should not have been taken into account in the decision. Ms Birch instead focused on the incident and lack of self-control and the seriousness of this – a physical altercation with actual force. “This is at the very low end… there was no punching or an assault. But it crosses the threshold of violence as you have placed hands on someone…”[70]Mr Chaudhry made it clear that the respondent does not accept the claimant was suffering from significant anxiety although “he was clearly frustrated and anxious.” This was not irrational conduct, as the claimant did not collapse or have a panic attack. The respondent argues that the claimant’s statement is a “self- serving document” it was entitled to discount.[71]Mr Chaudhry argued that a corrective penalty was not appropriate as there has to be a degree of admission, and he has denied behaving aggressively. Conclusions on the evidence and the law Dismissal[72]There were significant failures at the disciplinary stage which means the original decision to dismiss was outside of the range of reasonable responses, rendering this decision unfair.[73]It is not always the case that omitting to provide a statement to an employee in a disciplinary process will result in unfairness. However, Mr Haughton’s statement contained contentious allegations which, had the claimant had sight of, he would have denied.[74]Instead of Mr Tipler addressing Mr Haughton’s allegations with the claimant, the claimant was unaware of them. But they were relied on as direct justification for concluding that the claimant should be dismissed – because he had shown a lack of honesty, he refused to leave when asked by Mr Haughton, he had threatened a staff walk-out.[75]In addition, Mr Tipler believed at the time he made his decision that the claimant’s conduct did not relate to his brother, that this was an excuse, the underlying issue related to the strike action.[76]But none of these points were explored in the disciplinary hearing, the claimant was unaware of them, that they may be factors in the decision to dismiss.[77]Mr Haughton’s statement and Mr Tipler’s own view of the claimant’s rationale clearly materially influenced Mr Tipler’s conclusion that all trust had gone, the claimant’s mitigation was insufficient, he must be dismissed, this is explicit in the dismissal letter.[78]I accept that as a matter of basic fairness, all allegations which are being considered as elements of a finding of gross misconduct, or as issues potentially affecting assessment of mitigation, must be put to the employee during the disciplinary process. A failure to do so makes this dismissal outside of the range of reasonable responses and therefore unfair.[79]Could the dismissal otherwise be fair, stripping out the 9 February allegations not known to the claimant? Mr Tipler’s decision is infused with words - attack, violent act, which are not part of the disciplinary charge which was aggressive conduct. There is a significant difference between the meaning of violent and aggressive, the ordinary meaning of the former requires an intent to harm. The claimant believed he was being asked to meet a charge of aggressive conduct, the decision was he had engaged in a violent attack. It is outside of the range of reasonable responses to define an act of misconduct so significantly differently in the allegation and in the decision letter.[80]In addition, the decision to dismiss combines all of the elements of the disciplinary findings – violence, refuse to leave ‘incite’ members of staff in combination – these are the “”behaviour traits” which cause Mr Tipler to conclude that the claimant is “unable or unwilling” to understand the seriousness of his actions. This conclusion shows that the different elements of the findings have been linked to justify the claimant’s dismissal. I do not accept Mr Tipler’s evidence that stripping out the 9 February allegations contained in Mr Haughton’s statement would not have changed his conclusion, that his dismissal was otherwise fair.[81]Given Mr Tipler’s rationale, much of which appears for the first time in his witness statement, I do not accept that Mr Tipler gave reasonable consideration to length of service, clear prior record or the fact the claimant was receiving counselling.[82]Instead, Mr Tipler relied on issues not put to the claimant, and/or not in the decision letter. I conclude that his thought process meant he had an overwhelming belief of the claimant’s guilt which precluded him at any stage properly considering any of the claimant’s mitigation evidence.[83]Mr Tipler did not have the claimant’s statement or disregarded it. If Mr Tipler was concluding that the apology was self-serving, as he now says, he should have said so in his decision. By ignoring it and the claimant’s mitigation contained therein, he has acted outside of the range of reasonable responses. Appeal[84]Was this unfairness rectified on appeal? This was not a rehearing as promised, it was a review of some of the evidence. I do not consider that this mislabeling was a material factor making the decision on appeal unfair, what counts is not the labeling but whether the appeal decision was within the range of reasonable responses of a similarly sized and resourced employer.[85]The appeal rectified the following significant issue as the 9 February grossmisconduct findings were dismissed on the procedural grounds identified by the claimant.[86]The claimant admits misconduct, and he accepts that ‘aggressive behaviour’ falls within the ambit of potential gross misconduct meriting dismissal. At this point therefore, the fairness of the appeal – whether the decision to uphold the dismissal was within the range of reasonable responses – goes to the issues raised by the claimant in mitigation; his length of service, his clean record, his admission, his apology, his brother’s condition and the stress he was under that day.[87]Part of Mr Tipler’s reasoning for not accepting the claimant’s mitigation was because he did not believe the claimant’s brother’s health was the real reason for the incident, that he could have made alternative arrangements to travel. This reasoning does not appear to have been upheld by Ms Birch; she does not refer to it at all.[88]During the course of the disciplinary process including at the disciplinary and appeal hearings, the claimant had repeatedly referred to significant stress over his brother, and had stated he was now attending counselling to help him manage this.[89]Ms Birch’s decision says that the claimant’s situation that day was “clearly a very stressful situation” but that the severity of the incident, plus the fact he did not appreciate the impact of his actions on others, meant she could not have trust that he would not do so again.[90]This finding ignores the following: the claimant did apologise in writing – not referred to by Ms Birch. It was not suggested at the appeal that the apology was self-serving; if Ms Birch felt this was the case questions should have been asked and the claimant was entitled to say why it was not self-serving.[91]The decision ignores the fact the claimant stated he had mental health issues over his brother’s health and caring responsibilities, and he started counselling. No questions were asked on this at disciplinary or appeal, but his evidence at this time is clearly suggestive of insight, that the claimant had concerns about what he accepted was his irrational conduct that day, that his apology was not therefore self-serving. Such factors were relevant to mitigation, they were ignored.[92]The decision also ignores the fact that when asked, the claimant said he did understand the impact on Mr A, and that he had experienced similar. It is difficult to square this clear answer with Ms Birch’s conclusion that this answer does not show insight. While Ms Birch says this answer is not sufficient, she does not say why.[93]These factors – the claimant’s apology and written statement, the counselling, the claimant’s statement at appeal were, I find, not considered at all by Ms Birch at appeal. I do not accept it is within the range of reasonable responses to ignore answers and evidence which on their face clearly demonstrate insight and instead find against the claimant on these issues. If Ms Birch does not believe the claimant, the appeal hearing was the chance to ask questions about her issues of concern. She did not ask any questions on these issues.[94]Ms Birch relies consistently on the seriousness of the incident; her answers during the hearing suggest that she believed that the claimant’s actions were an act of violence. The claimant disputed the use of ‘violent’ or ‘attack’. Ms Birch used the claimant’s denials as evidence he was minimising his actions, further justifying his dismissal as fair.[95]But the claimant always accepted he had engaged in aggressive behaviour; he disputed the characterisation of the event as violent. At no time did Ms Birch consider the cctv evidence or invite the claimant to look at it and give his comments. She accepted the characterisation that the claimant had engaged in an act of violence, notwithstanding his denials, without considering whether his point of view was accurate; his denials were instead used to justify his dismissal.[96]I conclude it is outside of the range of reasonable responses to find against the claimant because of his view that he had not acted violently, without checking the cctv footage and allowing the claimant to look at and comment on it. Violence was disputed, the claimant had not seen the cctv footage, neither had Ms Birch. Such a critical finding needed to be based on available evidence rather than a supposition of what this evidence showed.[97]Ms Birch says she asked HR to check on Mr Blair. The claimant and his union rep are bemused by this answer. No documents have been produced showing the attempts to seek his HR records. I accept Mr Blackwell’s forceful evidence that Mr Blair was employed at the Fulham office at the time of appeal, and that his characterisation of the incident with Mr Blair is broadly accurate. Insufficient effort was put into locating him. At the very least the claimant’s rep should have been asked for further clarity on his identity. Given that the claimant stated that Mr Haughton was involved in this decision, Mr Haughton could have been interviewed.[98]Given that the claimant was raising a similar fact incident, arguing more generally that the respondent acted towards incidents such as this with a more flexible approach, and give that Ms Birch agreed to look into it, it was not within the range of reasonable responses to either ignore or make only desultory enquiry into this issue.[99]Ms Birch accepts that mitigation is potentially relevant to her decision. The reason why nearly 45 years of exemplary service was discounted was the seriousness of the situation as well as his lack of insight “he did not understand or consider… he did not understand” how Mr A felt, meaning the wellbeing of employees could not be protected if he was reinstated.[100]I do not consider that it was within the range of reasonable responses to effectively discount the claimant’s mitigation on length of service by saying he had not shown insight. In so concluding, Ms Birch has ignored or discounted the apology, the counselling, his mental health issues, his statement to her. This is evidence of insight. It was not reasonable to say that it is not insight without giving reasons why. It was not reasonable to discount length of service by saying he has not shown insight, without explaining why the apology, the counselling and his answer is not evidence of insight.[101]Mr Tipler did not have any regard to the claimant’s apology. While paying lipservice to the concept of mitigation, Ms Birch appears to have ignored the issues the claimant raised; apart from criticising his answer to her question, she does not consider mental health issues, the apology, the counselling – she certainly does not address them. If Ms Birch, as with Mr Tipler, did not believe the claimant, it was for her to say why; if she discounted his evidence of mental health issues she should have said why.[102]If Ms Birch was discounting his apology and other statements on mitigation, it was outside of the range of reasonable responses not to say why his mitigation evidence was either not believed or was not sufficient evidence of insight.[103]I conclude that the respondent failed at appeal to engage with the claimant’s principal arguments on mitigation and this was outside of the range of reasonable responses.[104]It may be that the respondent could argue that even if it had engaged on these issues he would still have been dismissed. This is an issue of Polkey, to be determined at remedy.[105]On Polkey and contributory fault, I heard brief submissions from the claimant and none from the respondent, these are issues to be addressed at remedy. REMEDY JUDGMENT The judgment of the tribunal is as follows:[1]It is practicable and just to Order that the claimant be reinstated to his original role as an Operational Postal Grade (OPG) postperson at Earls Court and West Brompton Delivery Office on the same terms as increased since his dismissal.[2]The claimant shall be reinstated on or before 7 April 2025 (the reinstatement date).[3]The claimant acknowledges that the Delivery Duty / Walk may not be the same as the pre-dismissal Delivery Duty.[4]The claimant is awarded the following: Arrears of pay, benefits and overtime: From 27 April 2023 to 7 April 2025: £58,188.28 LESS Carers Allowance (£ 5,404.90) PLUS 10% ACAS Uplift £ 5,278.34 LESS 10% for contributory fault: (£5,806.17) GROSSING UP: £52,255.55 - £30,000 At 20% basic rate: £4,451.11 TOTAL £56,706.66 Non-taxable pension contributions payable into pension fund (approx 5.65% net pay) £9,248.77[1]Reasons were given at the 11 March 2025 hearing. Final calculations were provided after the hearing. Written reasons were requested. The Issues:[2]Should the Tribunal make an order for reinstatement? In considering this issue:a. Does the claimant wish to be reinstatedb. Is it practicable for the respondent to comply with such an orderc. Where the claimant contributed to his dismissal, would it be just to order reinstatement? Did the claimant contribute to his dismissal?[4]Did the respondent fail to follow a proper process and if so would be just and equitable to increase the award by up to 25%?[5]If reinstatement is ordered, what payments are due to the claimant?[6]If reinstatement is not ordered, is the claimant entitled to a basic award and/or compensation for loss of earnings? Witnesses and tribunal procedure[7]I heard evidence from the claimant and from Mr Tipler, at the time the Operations Performance Leader SW London and the dismissing manager, who gave evidence on the practicability of reinstating the claimant. Relevant facts[8]In his evidence the claimant maintained, as he had done during the liability hearing, that he behaved irrationally rather than aggressively during the dismissal incident. He accepts that his actions may have come across as aggressive, but “I did not go out to be aggressive or act like this.” He accepts that a Core Standard, the ‘1st Principle’ – a critical business standard – of the respondent is to treat colleagues with “curtesy, dignity and respect”; and he accepts that his conduct was “diametrically opposed” to this standard. His case was that looked at “humanely” and considering his 44 years of good performance, this was “a few seconds” of poor conduct.[9]The claimant apologised for his conduct during the disciplinary process and during these proceedings. I find that during these proceedings he has shown genuine regret. He says, and I accept that he means, he wants to apologise to Mr A. He clearly holds no ill will towards this colleague.[10]The claimant still maintains that a motivation behind his dismissal was his engagement in industrial action which led to worsening relations between management and staff.[11]The claimant does not accept that he contributed towards his dismissal[12]Mr Tipler’s evidence was that the respondent accepts the judgment of the tribunal. On reinstatement, he argues that the claimant’s breach of 1st Principle was at the “higher level”. In his statement he argues that the claimant was responsible for unacceptable physical contact with a colleague; that the judgment of the Tribunal “does not detract” from the respondent’s view that this conduct was unacceptable.[13]Mr Tipler argued that he still believes this was an “attack” on Mr A, and that he still believes there were other factors which led to this incident, not just the health of his brother; he said he believed this in part because the claimant failed to take other steps to leave the depot “… it was not necessarily all to get away to see his brother, and he could have dealt with it differently”. He still believes that the claimant demonstrated a “lack of honesty” to Mr Haughton when he was suspended, he believes that the claimant threatened a walk out.[14]Mr Tipler’s evidence was that as a consequence trust and confidence is irreparably broken and it is not practicable to reinstate the claimant. He also says that Mr A continues to be employed at the Fulham office, again a significant issue of practicability, as delivery offices have people working together in close confines, “… so working together, respect, getting along are key for smooth running of office.”[15]On questions about the claimant’s stated mitigation during the dismissal process and in his case - his brother’s illness and his belief he needed to give urgent assistance causing him significant stress, his counselling since, his length of good service - Mr Tipler argued that this was not sufficient mitigation to mean it was practicable to reinstate. Mr A was “grabbed hold of, attacked, a member of staff was trying to restrain; it would have been prolonged if no colleague present. I have a duty of care to that colleague. … there was not enough mitigation to warrant no dismissal. So, trust was lost at this point. … this is my view now, even with the findings of the tribunal.”[16]Mr Tipler argued that the claimant’s mitigation evidence “does not explain” his actions towards Mr A, that the claimant could have resolved his need to get to his brother in other ways. He accepted that the failure to assist the claimant when he was trying to leave the depot was ‘unhelpful’ but this did not detract from the claimant’s actions.[17]The respondent’s case is that there are surplus employees in the SW postcode, the number of employees in the region is 1,132 against a requirement of 1,060 (230).[18]The respondent also argues that at the Fulham office there is a surplus of 27 staff. West Brompton is understaffed by 2, but the Fulham excess would need to be transferred; to reemploy the claimant would add to the surplus.[19]The claimant and Mr Charles argue that several offices have significant issues with poor delivery patterns; that the respondent has been obliged to put more staff into these offices to get the post delivered, that there is an operational reason for any deemed surplus, as these numbers of staff are required at that depot.[20]Mr Charles also says that the 1,060 figure is not agreed, in any event attrition rates are “huge”, between 50 – 70 per quarter, that the respondent is not making staff reductions across SW London; that the company and unions “are trying to establish how many [staff] are needed … 1060 is a red herring, as there is additional requirement for bodies to do the work we have”. He says that while reform has been proposed to reduce headcount, “no reform has been agreed…” that this needs to go to parliament. There have been trials of different ways of working, but how the workplace will look like as a result of any reform “we do not know” as it has yet to be agreed with the union or confirmed by parliament.[21]Mr Charles also argues that there is no recruitment stop “we have people being changed from agency to Royal Mail and we have new employees walking through the door, including West Brompton and Earls Court.”[22]On the claimant’s case that Mr Blair was not disciplined for similar conduct, but was instead transferred, Mr Tipler has no knowledge of this case, he accepts that no investigation has been undertaken into Mr Blair since the liability hearing.[23]The respondent’s position is that the claimant has failed to mitigate his loss as he has not applied for, say, driving jobs. The claimant’s position is that he had to stop driving for the respondent as he has sclerotic arthritis for which he takes medication. He accepts that he has not applied for work, he was dismissed for aggressive conduct, and he has no other experience of work. He has no computer skills and no qualifications. He believes his age and medical conditions count against him.
The law
[24]Employment Rights Act 1996 s.113 - The orders. An order under this section may be—(a) an order for reinstatement (in accordance with section 114), or(b) an order for re-engagement (in accordance with section 115), as the tribunal may decide. s. 114 Order for reinstatement. (1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. (2) On making an order for reinstatement the tribunal shall specify— (a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and(c) the date by which the order must be complied with. (3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed. (4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances. s.115 - Order for re-engagement. (1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment. (2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including— (a) the identity of the employer, (b) the nature of the employment, (c) the remuneration for the employment,(d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement,(e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and(f) the date by which the order must be complied with. (3) In calculating for the purposes of subsection (2)(d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of re-engagement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances. s. 116 - Choice of order and its terms. (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms. (4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement. (5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement. (6) Subsection (5) does not apply where the employer shows— (a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or (b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement. s.123 - Compensatory award ... (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 and equitable having regard to that finding.[25]Case law - practicability of reinstatementa. Timex Corpn v Thomson [1981] IRLR 522: A tribunal can make an order for reinstatement or re-engagement even if it was not convinced that the order was necessarily practicable, provided it thought that it might succeed. The tribunal may make an order to test whether the employer's claims of impracticality are justified; s.116 only requires the tribunal “to ‘have regard’ to matters of practicability. In our judgment there is no need for a tribunal to reach a final conclusion that re-engagement is practicable before making any such order … At the stage when the order to reengage is being made, it is not in our judgment necessary for the tribunal, looking at future possible events, to make a definite finding that the order for re-engagement was practicable. They must have regard to the question of practicability and if they are satisfied that it is unlikely to be effective, they will no doubt not make an order. The only strict requirement is that they should have regard to practicability”b. Rao v Civil Aviation Authority [1992] IRLR 203: the relevant principles are: i. Orders for reinstatement or re-engagement are “primary remedies” for unfair dismissal ii. Such orders are discretionary iii. The only fetter on that wide discretion is that a tribunal must “take into account” the considerations set out in section 116(1) and (3) iv. In both subsections the word “practicable”, is used. It is not “possible”; it is not “capable”.''c. Port of London Authority v Payne [1994] IRLR 9 CA: The issue of practicability is a question of fact, not an issue of reasonableness. In reaching its conclusion the tribunal should “give due weight to the commercial judgment” of the employer. Also, while the determination at the first stage was of necessity provisional, it is important that there is a finding at stage 1: ''… some determination has to be made at stage 1. But the determination or assessment is of necessity provisional. The final conclusion as to practicability is made when the employer finds whether he can comply with the order within the period provided for reinstatement or re-engagement…”.d. Coleman and Stephenson v Magnet Joinery Ltd[1974] IRLR343: what was practicable should not be equated with what was possible; it is necessary for a tribunal to consider the industrial relations realities of the situation. If there would be serious industriual strife as a consequence it would not be practicable to re-engage an employee. The question is whethere reinstatement was “capable of being carried into effect with success.”e. Central and North West London NHS Foundation Trust v Abimbola [2009] All ET (D) 188: a breakdown in mutual trust and confidence is material to the practicability of a re-employment order: were their factors which undermined the respondent's trust and confidence in the claimant such as to make it impracticable for them to reinstate him?f. Kelly v PGA European Tour [2021] EWCA Civ 550: a genuine belief that the employee has committed an act of misconduct is a material consideration. It is particularly important that the tribunal does not substitute its own assessment for that of the employer. “In particular, I am wary of tribunals becoming too focused on the language of “trust and confidence”, which may carry unhelpful echoes from its use in other contexts. In this context it simply connotes the common sense observation that it may not be practicable for a dismissed employee to return to work for an employer which does not have confidence in him or her, whether because of their previous conduct or because of the view that it has formed about their ability to do the job to the required standard. Of course any such lack of confidence must have a reasonable basis. The important point made by the EAT in United Lincolnshire NHS Foundation Trust v Farren is that while that is an objective question it must be judged from the perspective of the particular employer: that reflects a proper recognition that an employment relationship has got to work in human terms. However, each situation must be judged on its particular facts.g. Kelly v PGA European Tour [2020] IRLR 927, EAT, the tribunal must consider whether the whether the employer had genuinely and rationally concluded that it lacked trust and confidence in the employee. The ultimate question is whether it is practicable for this employer to re-employ this employee and whether the employer's objection to doing so is held upon a genuine and rational basis. ''Accordingly, the Tribunal must consider whether the employer genuinely and rationally believes that trust and confidence has been broken, so that re-employment is not practicable: that is, not capable of being carried into effect with success. An employer cannot merely assert that this is the case in a self-serving way, in order to successfully resist the Order sought. The Tribunal should test and evaluate against the evidence before it, whether the employer's stated belief is both genuinely and rationally held. But it must keep in mind that the ultimate question is about whether it is practicable for this employer to re-employ this employee.' ''The requirement for the asserted belief to be both genuinely held, and have a rational foundation, is not a reasonableness test, or to be equated with that which would be applied under section 98(4) of the 1996 Act. A belief may have a rational foundation in evidence or information known to the person who forms it, though it has not been reasonably reached. This explains why, as authorities such as Crossan show, it is possible for an employer to rely upon a genuine and rational belief in misconduct as having a bearing on practicability, even though the dismissal for that same conduct was unfair.h. United Lincolnshire Hospitals NHS Foundations Trust v Farren UK EAT/0198/16: it is the employer's view of trust and confidence – appropriately tested by the tribunal as to whether it was genuine and founded on a rational basis – that matters, not that of the tribunal which should not substitute its view for that of the employer.i. London Borough of Hammersmith & Fulham v Keable EAT [2022] IRLR4: the fact that an employer still genuinely believes in the guilt of an employee after a Tribunal judgment of unfairness can amount to a breakdown in trust and confidence such as to make reinstatement not practicable, but not always. Notwithstanding that this was a belief, a tribunal may conclude that trust and confidence has not been lost. ''In our view, it does not automatically follow, particularly in an organisation as large as the Council, that because the dismissing officer … genuinely believed that the Claimant had been guilty of misconduct, that the Council, as an employer, had lost trust and confidence in him. Similarly, and self-evidently, it does not automatically follow that because an employer decides to dismiss an employee for conduct, that decision later being found to be an unfair one, that reinstatement is impracticable. If that were the case, the primary remedy of reinstatement would very rarely be able to be made. … “It is the employer's view of trust and confidence – appropriately tested by the tribunal as to whether it was genuine and founded on a rational basis – that matters, not the tribunal's”.[26]Case law - Contributory faulta. Jagex Ltd v McCambridge [2020] IRLR 187, EAT: The test is whether the conduct is culpable, blameworthy, foolish, or similar. This includes conduct that falls short of gross misconduct and need not necessarily amount to a breach of contract.b. Steen v ASP Packaging Ltd UKEAT/23/13: A Tribu i. must identify the conduct which is said to give rise to possible contributory fault; ii. must ask whether that conduct is blameworthy—the answer depends on what the employee actually did or failed to do, which is a matter of fact for the Tribunal to establish and which, once established, it is for the Tribunal to evaluate; iii. the Tribunal must ask for the purposes of ERA 1996 s 123(6) if the blameworthy conduct it has identified caused or contributed to the dismissal. iv. If it did cause or contribute to the dismissal, is it just and equitable to reduce the award, if so to what extent.c. N Notaro Homes v Keirle [2024] EAT 122: If the tribunal finds that the employee’s conduct was culpable, it is bound to consider making a reduction by such amount as it considers to be just and equitable. However, it is not mandatory to make a reduction. The tribunal may consider it just and equitable for there to be no reduction event though blameworthy conduct occurred.d. Frew v Springboig St John's School UKEATS/0052/10: A tribunal must consider all the relevant circumstances, including mitigating factors, when determining whether to make a reduction for contributory fault.e. Parsons v Airplus International Limited UKEAT/0023/16: It is difficult to envisage circumstances that would justify a conclusion that it would not be just and equitable to reduce an award at all when there has been a finding that the claimant's blameworthy conduct caused or contributed to the dismissal.f. Gibson v British Transport Docks Board [1982] IRLR 228: ''What has to be shown is that the conduct of the [claimant] contributed to the dismissal. If the applicant has been guilty of improper conduct which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the tribunal to find that the conduct contributed to the dismissal. That is how the section has been uniformly applied'.'g. Wilkinson v Driver and Vehicle Standards Agency [2022] EAT 23: When considering contributory fault, while the focus is on the employee’s conduct, the employer’s conduct in causing the dismissal to be unfair is a factor to be considered: ''I do not, however, accept [the employer's] submission that fault on the part of the employer is wholly irrelevant to the exercise of the Tribunal's discretion under section 123(6). Once section 123(6) is engaged, the task of determining the appropriate level of contributory reduction frequently becomes, in practical terms, an exercise in apportionment of culpability between the employee and the employer. It follows that, once section 123(6) is engaged, conduct of the employer which caused the dismissal to be unfair frequently becomes relevant in assessing the appropriate percentage reduction. It is clear from the way in which the percentage bands of culpability were defined in Hollier v. Plysu Limited [1983] IRLR 230 … that this involves an apportionment of fault between employee and the employer in relation to the matters which contributed to the dismissal.'' Conclusions on the evidence and law[27]On contributory conduct, the claimant's position is that his irrationality during the disciplinary incident, his brother’s ill health and urgent need to leave the office means there was no contributory conduct by him. The respondent argues there is a “high level” of contribution given the claimant instigated an act of aggression and shouted at a colleague, a serious breach of its 1st Principal.[28]I accept that the claimant was guilty of improper conduct which gave rise to the disciplinary process. It was blameworthy conduct in that, as the claimant accepts, he grabbed a colleague’s fleece and shouted at him.[29]The employer’s conduct is also a factor to be considered in assessing the extent of the claimant’s contribution to his dismissal. The respondent's reason for dismissal contained findings on issues and allegations which were not disciplinary allegations known to the claimant. The respondent failed to properly consider the claimant’s mitigation evidence because of its view on the seriousness of the incident.[30]I accept that it is not mandatory to make a deduction for contributory fault, that the tribunal may consider it is just and equitable for there to be no deduction.[31]However, this was a serious incident in which the claimant engaged in aggressive behaviour, he grabbed a colleague’s fleece though the van window and shouted at him. Even through there is significant mitigation evidence, and significant failures by the respondent in the process, I conclude that it is just and equitable to make a reduction in the compensatory award to the claimant. Given his mitigation evidence, his loss of control in a very stressful situation involving an urgent need to visit his brother, together with an assessment of the respondent’s conduct, I assess his contribution at 10%.[32]I accept that the respondent genuinely believes that it has lost confidence in the claimant by way of his conduct, such that it believes it is unable to reinstate him.[33]Trust and confidence must necessarily be connected to something – there must be ‘factors’ which fatally undermine the relationship such that it is impracticable to reinstate. To summarise the respondent’s evidence, it is not willing to reinstate the claimant because:a. his conduct was so serious (“grabbed hold of and attacked...”) that the claimant’s mitigation evidence is insufficient;b. it has lost trust and confidence in the claimant not to act in a similar way in the future;c. in any event the claimant’s mitigation evidence does not explain his conduct, and it does not accept the whole reason the claimant wanted to leave was to see his brother. If it was, he could have left by other meansd. the claimant had an animus towards his management regarding industrial action and was untruthful when being suspended[34]The claimant’s position, put by Mr Banham in closing arguments, is that reinstatement is practicable because his conduct would not have led to his dismissal had a fair process been adopted. Instead, the respondent continues to rely, as at liability, on issues in the disciplinary process which “did not occur or were not disciplinary allegations”. A fair process looking at the actual events of that day would have found that the claimant engaged in aggressive behaviour when under extreme stress causing him to act irrationally, and because of this he shouted and grabbed Mr A’s clothing. With 44 years' service and an excellent record, “under a fair process he would not have been dismissed.”[35]The claimant argues that Mr Tipler has not properly addressed the issues on reinstatement, that the respondent uses the same arguments it used at liability, that the respondent continues to believe the claimant was untruthful during the disciplinary process, these views were unfair at the disciplinary process; so Mr Tipler’s evidence “is weak or worthless”.[36]I accept that Mr Tipler’s evidence reflects his genuine belief that the claimant was untruthful, and that he genuinely believes the claimant threatened a walk-out and other misconduct.[37]On reinstatement, the issue is whether these views are rationally held. I do not accept they are. It is not rational to assess the claimant’s conduct as an attack, or violent conduct. He grabbed an employee’s fleece while in a state of extreme stress. In any ordinary meaning of the words, this act was not an attack and was not violent conduct, and it is irrational to continue to say that it was, particularly given the findings at liability which have not been challenged.[38]Additionally, as the liability judgment sets out, many of Mr Tipler’s views in his evidence were never part of the disciplinary case. It was not an allegation or a disciplinary finding that the claimant's reasons for leaving were untruthful, and some of the reasons for dismissing him had never been disciplinary allegations.[39]I conclude that many of the reasons given by the respondent for considering there is a loss of trust and confidence are based on mere suspicions. They are not rational views for the following reasons. No evidence has been provided to support the respondent’s view that the claimant may have had another motive for wanting to leave; his consistent explanation is supported by contemporary evidence that he told his manager his reasons for leaving urgently; his manager’s knowledge of his brother’s condition and being sole carer; his irrational conduct was witnessed by his manager; he has asserted throughout that this was a very difficult and stressful situation for him.[40]This was information in the respondent’s hands which clearly supports the claimant’s reasoning, which “explains his conduct” – i.e. why this incident occurred. But it is because the respondent refuses to accept that the claimant has explained his conduct, that it continues to believe there was another motive, it considers it cannot have trust and confidence in the claimant. Again, this is a circular argument which lacks rationality.[41]I also find that the respondent has discounted both his exemplary 44 years of prior service, and evidence of counselling post the incident. This is relevant evidence in support of the claimant’s arguments on reinstatement, that he can safely be reinstated in post. While the respondent is entitled to argue that this was a serious incident, in doing so it has determined that his length of service and good record cannot be supportive evidence for his reinstatement. Effectively it is arguing that there cannot be trust and confidence because of the seriousness of the incident.[42]In so arguing, the respondent fails to consider that his long service is further evidence that this conduct was so out of character that it is highly unlikely to reoccur. Again, I do not consider that the respondent’s conclusion is rational. Service is a factor which the respondent should have considered because of the nature and context of this incident. Its failure to do so because it viewed this incident so seriously is not, in the context of the incident itself, a rational one.[43]Given the high staff turnover at the claimant's usual place of work and the high number of temporary staff, I do not accept the respondent’s contention that there will be no vacancies in the near future, meaning it is impracticable or unjust to the respondent to reinstate the claimant. In discussion, it was agreed that a feasible date of return was 7 April 2025, suggesting that there was the likelihood of an available vacancy by that date.[44]The claimant has asserted that a motivation to dismiss him was to do with his involvement in industrial action. I do not accept this was the case, as I find the respondent had a genuine view his was a serious incident. But I also do not accept that the claimant’s view means reinstatement is not practicable. He did engage in industrial action, and there was clearly poor morale and poor staff/management relations for a while afterwards. The claimant is entitled to a view, but this does not detract from his eagerness to return to work and his clear willingness to start afresh.[45]I do not accept that the claimant has failed to mitigate his loss. He believed that after a working lifetime working for the respondent and being dismissed for gross misconduct, coupled with his age and lack of other expertise including computer skills, his inability to do driving jobs and other health issues, he was unlikely to find another job. I find that all these factors mean he was probably right, and he was certainly justified in holding this belief. The respondent has not provided details of any roles he could have obtained.[46]I agree that it was reasonable for the claimant to take on the role of caring for his brother, for which he has received Carers Allowance. In the claimant's specific circumstances, undertaking this role and receiving benefits he was entitled to receive amounts to adequate mitigation. The parties agree that his Carers Allowance is not a recoupable benefit, but the amount he received should be deducted from any awards of back-pay or compensation.[47]I accept that where a claimant has contributed towards his dismissal, it is only in exceptional circumstances that a tribunal will order reinstatement.[48]I conclude that this is one of those circumstances - the exceptional length of the claimant's employment of 44 years, his excellent work record, the significant mitigation evidence surrounding the incident, the claimant’s genuine belief that reinstatement will succeed and his willingness to apologise to Mr A, and the lack of cogent evidence or reasons from the respondent at this hearing as to why reinstatement is not practicable.[49]While it cannot be guaranteed that reinstatement will work, all these factors justify discounting the claimant's contribution to his dismissal. There is a real prospect that reinstatement will be successful.[50]I accept that the claimant has contributed towards his dismissal by 10% and conclude that this should be reflected in a reduction in the award of back-pay of 10%.[51]I conclude that the respondent has failed to comply with the ACAS Code on disciplinaries. It used allegations which were not part of the disciplinary and about which the claimant was never told or asked questions about, it did not provide him with a relevant statement. The respondent argues that the issues of noncompliance were minor, it argues that there should be no increase in the award, the claimant says it should be substantial.[52]I concluded that I would make an award for the following reasons: the breaches of process by the respondent were serious, part of its reasons for dismissal was never part of the disciplinary allegations. But the respondent sought to have a fair process, it had a genuine belief in the claimant's misconduct; the process was not a sham.[53]I informed the parties I would calculate the percentage award once we had arrived at the back pay figure for compensation, to give a sense check on the overall level of the award and the value of a percentage uplift.[54]I determined that the reasons above merited an award in the mid-range of the ACAS uplift. Given the level of the award and taking account proportionality, I determined to award a 10% increase. While the breaches were serious, the respondent did seek to have a fair process, it had a genuine belief in the claimant’s conduct; the process was not a sham. Against this is that allegations and material evidence used to dismiss the claimant was not provided to him, a significant error. Given the level of the award for back pay, I determined that a 10% contribution was equitable in the circumstances. The calculation:[55]Lost earnings from 27 April 2023 to 7 April 2025:a. Loss of salary 27/04/23 to 31/03/24 (49 weeks) x £450.58 (net weekly pay) £22,078.42b. Loss of salary 01/04/24 to 07/04/25 (53 weeks) x £493.98£26,180.94c. Overtime – 27/04/23 to 07/04/25 £ 4,929.88d. Lost DS Allowance £ 2,902.14e. PSB Allowance £ 254.15f. Misc payments £ 1,842.75 TOTAL: £58,188.28 LESS Carers allowance: (£5,404.90) TOTAL £52,783.38 ACAS Uplift at 10% = £5,278.34 = £58,061.72 LESS 10% contribution (£ 5,806.17) TOTAL £52,255,55 GROSSING UP: £52,255.55 LESS £30,000 at 20% basic rate: £4,451.11 TOTAL PAYABLE TO CLAIMANT £56,706.66 Non-taxable pension contributions payable into pension fund (approx. 5.65% net pay) £9,248.77 Approved by: