Mr T Ramchurn v Secretary of State for Justice and A Frost: 2216149/2024
EMPLOYMENT TRIBUNALS
Case No 2216149/2024
Between
Mr T RamchurnClaimantSecretary of State for Justice and A FrostRespondent
Before
Employment Judge WebsterIn person for claimantMs Mellor (instructed by Counsel) for respondentDate 6 October 2025
JUDGMENT
[1]The Claimant’s claims for direct age, race and sex discrimination (s13 Equality Act 2010) are not upheld.[2]The Claimant’s claims for harassment related to age, race and sex are not upheld (s26 Equality Act 2010).[3]The Claimant’s claim for unfair dismissal (s98 Employment Rights Act 1996) is not upheld.
REASONS
[4]The below List of Issues was finalised with the parties at the outset of the hearing on 29 September 2025. It involved updating the List of Issues to include the amendments EJ Davidson had allowed on 9 May 2025.[5]Following allowing those amendments, EJ Davidson had also made an order for further information in respect of two of the allowed amendments and the Claimant had produced a 5 page document in response.[6]A significant period of time at the outset of the hearing was spent trying to allow the Claimant to shape that further information document (p187-192) into bullet points that would facilitate clarification of the two allowed for amendments. The Claimant found that exercise challenging. However the approach agreed was that I would, insofar as was possible, condense what the Claimant had told me into bullet points and add them to the List of Issues making clear that these were bullet points by reference to the full 5 page document produced earlier so that the Claimant was not concerned that anything he had said about Mr Twinberrow’s alleged micromanagement in that document would be ignored by me.[7]I had a bundle numbering 739 pages with an agreed additional page added on the second day.[8]I had witness statements for the following:(i) The Claimant(ii) Dominik Ceglowski(iii) Andrew Twinberrow(iv) Marcia White(v) Amy Gibson(vi) Amy Frost(vii) James Lucas All witnesses attended in person to give oral evidence.[9]Oral reasons were given at the conclusion of the hearing. The Claimant subsequently requested written reasons on 23 October 2025. The Law S136 Equality Act 2010 - The Burden of Proof
The Law
[10]S.136(2) Equality Act 2010 (EqA) provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.[11]The EHRC Employment Code states that ‘a claimant alleging that they have experienced an unlawful act must prove facts from which an employment tribunal could decide or draw an inference that such an act has occurred’. If such facts are proved, ‘to successfully defend a claim, the respondent will have to prove, on the balance of probabilities, that they did not act unlawfully’.[12]The leading case on this point remains Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931. This was further explored in Madarassy v Nomura International plc 2007 ICR 867, CA; and confirmed in Hewage v Grampian Health Board 2012 ICR 1054, SC.[13]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[14]The Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205, EAT, gave a clear set of guidelines which we have had due regard to. Time limits - S123 Equality Act 2019[15]S123 (1)Subject to s140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (2)Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Direct discrimination: Equality Act 2010 s13 16. 13 Equality Act states: “(1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[17]I have reminded myself that discrimination such as this is rarely obvious and it is unusual that any such treatment is openly admitted to or confirmed by clear written evidence as confirmation. The tribunal must consider the conscious or subconscious mental processes which led A to take a particular course of action in respect of B, and to consider whether a protected characteristic played a significant part in the treatment.[18]For A to discriminate directly against B, it must treat B less favourably than it treats, or would treat, another person. The Tribunal must compare like with like (except for the existence of the protected characteristic) and so “there must be no material difference between the circumstances” of the claimant and any comparator. (section 23(1), EqA 2010).[19]I have considered the guidance set out by HHJ Mummery in In Stockton on Tees Borough Council v Aylott 2010 ICR 1278, CA, According to Lord Justice Mummery: ‘In this case the issue of less favourable treatment of the claimant, as compared with the treatment of the hypothetical comparator, adds little to the process of determining the direct discrimination issue. I am not saying that a hypothetical comparator can be dispensed with altogether in a case such as this: it is part of the process of identifying the ground of the treatment and it is good practice to cross check by constructing a hypothetical comparator. But there are dangers in attaching too much importance to the construct and to less favourable treatment as a separate issue, if the tribunal is satisfied by all the evidence that the treatment (in this case the dismissal) was on a prohibited ground.’ Therefore, although considering the treatment of a comparator will often be the most straightforward way of determining whether direct disability discrimination has occurred, the issue may sometimes take a back seat to a common-sense appreciation of the facts.[20]I have therefore also considered what is referred to as the ‘because of’ or ‘reason why’ test to the claimant’s assertions. I have considered, the subjective motivations — whether conscious or subconscious — of the respondents in order to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on. As set out in Nagarajan v London Regional Transport 1999 ICR 877, HL I have considered the relevant mental processes of the respondents and the context in which they made their decisions. As Lord Nicholls put it ‘Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’[21]I have reminded myself that it does not matter if the motive is benign or malign. This is set out in the EHRC Employment Code. In other words, it will be no defence for an employer faced with a claim of direct discrimination to show that it had a ‘good reason’ for discriminating.[22]The protected characteristic need not be the main reason for the treatment provided it is the ‘effective cause’. (O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor 1997 ICR 33, EAT Harassment – s26 Equality Act 2010[23]S26 (1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ….. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— …. Race Age Sex[24]The EHRC code sets out what is meant by ‘related to’ in paragraphs 7.9-7.11. It states that related to has a broad meaning and that the conduct under consideration need not be because of the protected characteristic.[25]The Claimant must establish first that the conduct is unwanted and then whether, taking into account all of the circumstances of the case it is reasonable for the conduct to have the stated effect. This is an objective test with a subjective factor of the perception of the claimant.[26]The gravity of the conduct is a key part of the objective assessment. Some complaints will fall short of the standard required. Elias LJ in Land Registry v Grant [2011] ICR 1390 CA (para 47): … even if in fact the [act complained of] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. Unfair Dismissal[27]Section 98 of the Employment Rights Act 1996 (ERA) provides as follows:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show – (a) The reason (or if more than one, the principal reason) for the dismissal, and (b) That it is either a reason falling within subsection (20 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) Relates to the conduct of the employee, (c) Is that the employee was redundant, or (d) Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a) (a) ‘capability’ in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental qualify and (b) ‘qualifications in relation to an employee means any degree, diploma or other academic technical or professional qualification relevant to the position which he held.(4) In any other case where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismiss is fair or unfair (having regard to the reason shown by the employer) – (a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonable or unreasonably in treating it as a sufficient reason for dismissing the employee and (b) Shall be determined in accordance with equity and the substantial merits of the case.[28]The respondent’s case was that this was dismissal for conduct. That is a potentially fair reason under s 98(2)(b) Employment Rights Act 1996 (‘ERA’). In the event that the respondent is correct in that context a determination of the fairness of the dismissal under s98(4) ERA is required. This involves an analysis of whether the respondent’s decision makers had a reasonable and honest belief in the misconduct alleged. Further a tribunal must determine whether there were reasonable grounds for such a belief after such investigation as a reasonable employer would have undertaken. The burden of proof is neutral in relation to the fairness of the dismissal once the respondent has established that the reason is a potentially fair reason for dismissal. The tribunal must also determine whether the sanction falls within the range of reasonable responses to the misconduct identified. This test of band of reasonable responses also applies to the belief grounds and investigation referred to.[29]The test as to whether the employer acted reasonably in section 98(4)ERA 1996 is an objective one. I have 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 (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439). I have reminded myself of the fact that I must not substitute our view for that of the employer (Foley v Post Office; Midland Bank plc v Madden [2000] IRLR 82);[30]I have also reminded myself that this test and the requirement that I not substitute my own view applies to the investigation into any misconduct as well as the decision. (Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23. This means that I must decide not whether I would have investigated things differently, but whether the investigation was within the range of investigations that a reasonable employer would have carried out. I know that I must assess the reasonableness of the employer not the potential injustice to the claimant Chubb Fire Security Ltd v Harper [1983] IRLR 311). and only consider facts known to the employer at the time of the investigation and then the decision to dismiss (W Devis and Sons Ltd v Atkins [1977] IRLR 31.) Facts
Background
[31]I have made findings of fact solely in relation to matters which assisted me in reaching my conclusions. Where I do not reference evidence that I was taken to that does not mean I have not considered it, simply that it was not relevant to my conclusions. All of my findings are reached on the balance of probabilities.[32]I have referred to everyone using the ‘normal’ prefixes of Ms or Mr as opposed to using the ranking system used by the First Respondent. No disrespect is intended, it is to reflect that several of the witnesses have changed roles since the relevant events. Where someone’s rank at the time is relevant I shall identify it.[33]The Claimant was employed as a prison officer by the First Respondent. He worked at Wormwood Scrubs. The Second Respondent was the Governor of that prison and made the decisions to give him a final written warning and subsequently to dismiss him.[34]The main issues in this case relate solely to the Claimant’s ability to work with his colleagues. There was no significant criticism of his work performing his duties as a prison officer. On the occasions where the Claimant was spoken to by the Respondent about the quality of his work, all the Respondent witnesses agreed that their concerns were not serious, just matters which needed addressing as part of the day to day management of staff and the prison. The problem that led to the Claimant’s dismissal was his response to those conversations as detailed below. Training in April 2020[35]The Claimant was provided training by the First Respondent when he commenced employment. The training was provided by an officer named Ms Mackinnon. He alleges that her behaviour during that training was poor and in particular that she looked down her noses at black colleagues. He relies upon an assertion that three black prisoner officers also raised concerns with Mr Ceglowski about Ms Mackinnon and that he himself raised concerns, though when he raised his concerns was less clear. He says that the he mentioned it to Mr Ceglowski but that Mr Ceglowski did not take any action. He does not give details in his witness statement (nor in evidence) of what he mentioned to Mr Ceglowski in 2020.[36]It was not disputed by the Respondent that concerns were raised about Ms Mackinnon. In evidence Mr Ceglowski confirmed that she had been removed from delivering training following the issues identified. I had no evidence that the complaint from the other members of staff was about racism, though I note that Mr Ceglowski did not deny that this was the basis for the complaint.[37]I had no other evidence from the Claimant regarding this issue. His witness statement simply stated that he experienced discrimination and harassment but not what shape that took. He did not give me any examples of what he says led him to believe that Ms Mackinnon was looking down her nose at him in 2020 and why he believed that to be because of his race. His concerns before me appeared to be motivated by the fact that Ms Mackinnon subsequently raised a complaint against him. He considered that her actions against him were unfair because she had previously behaved in a way that had been complained about and yet, from his point of view, she had suffered no consequences. However it appears that steps were taken following the complaints by colleagues and she did suffer consequences as she was removed from delivering training.[38]On 26 July 2021 Ms Mackinnon raised a complaint via email about the Claimant saying that he had shouted at her in front of other colleagues. The details were outlined in Mr Ceglrowski’s witness statement. On 28 July 2021 she sent a further email complaining about the Claimant’s behaviour in another incident that had occurred on 26 July 2021. The allegations were that he became very animated and accused her of being racist and unhelpful. She alleged that he said ‘I hate you and you hate me’. She alleged that she had found his behaviour confrontational, aggressive, threatening and wholly unprofessional.[39]Mr Ceglowski met the Claimant on 15 October 2021 during which Mr Ceglowski says that the Claimant accepted he had acted unprofessionally and disrespectfully and did not dispute some aspects of Ms Mackinnon’s account of the incident. As a result of that incident Mr Ceglwoski wrote to the Claimant with what can be categorised accurately as advice and guidance. The Claimant was told that the behaviour was inappropriate and told to put grievances aside. He was not disciplined for this incident. 18 January 2022 incident[40]On 18 January 2022 two incidents occurred which caused the claimant’s colleagues some concern. The first involved the claimant allegedly serving prison food on his own which then resulted in the prisoner leaving his cell and requiring staff intervention. The second incident involved a the claimant issuing a television to a prisoner without consulting a supervising officer first. The claimant states that the reporting of these incidents was misplaced. He confirms that a colleague, Officer Stevens, was present when he unlocked the prisoner cell and he says that it was both a joint decision with a colleague and within his discretion to reward the other prisoner with the television in the circumstances that he outlines.[41]The respondent witnesses all repeatedly pointed out that on their own, their concerns about what the Claimant had done on 18 January 2022, would not have led to any form of disciplinary process or performance process against the Claimant. All they wanted to do was to speak to him about it, reminded that he should do things differently and, in their view, everyone would have moved on. However, because of the way that the Claimant responded to those conversations, what Mr Twinberrow subsequently wanted to ascertain, and investigate, was why the claimant responded so dramatically when he was spoken to about these two incidents.[42]On balance of probabilities I find that the claimant was reported to Mr Twinberrow by Ms White and Ms Gibson in respect of the issues concerning prisoners although it is not confirmed in Mr Twinberrow’s witness statement that they were the ones who reported the Claimant to him. As a result Mr Twinberrow called and asked the claimant to meeting downstairs in supervising officer’s office. The claimant told Mr Twinberrow that the reason he had been reported by officers White and Gibson was that he had seen them behaving badly to other prisoners and he also suggested that they were reporting him because of his race, age, sex and background.[43]The claimant referred to his ‘background’ on numerous occasions during the hearing. For the most part I interpreted this as meaning his race but it was never properly clarified to me as to what the Claimant meant.[44]During the conversation on 18 January 2022, the claimant’s response was to argue with Mr Twinberrow though it is clear that Mr Twinberrow did not consider the incident to be particularly serious as he followed up a letter giving the Claimant some more advice and guidance about his performance on 19 January 2022. That letter can be categorised accurately as advice and guidance. It did not include a formal warning and was not intended to be so. 4 May 2022[45]At some point, a prisoner had been unlocked on B wing when he should not have been. This was discussed on 4 May 2022, during a regular staff briefing. The prisoner had been unlocked by the Claimant but I accept the Respondents’ witness evidence that it was dealt with as a learning point for the team not as a public disciplinary matter. During the briefing, in response to Mr Twinberrow asking if anyone had any questions, the claimant raised his hand and asked about an incident when he said Ms White’s had allowed a different prisoner out who had then been aggressive. Ms White and Mr Twinberrow both interpreted the claimant’s actions as challenging Ms White’s authority as she was the senior officer and being an attempt to deflect attention from the issue that was being discussed at this briefing. They both say that the Claimant’s manner was quite aggressive whilst he was raising the issue and that it upset Ms White so much so that she left the office. Mr Twinberrow asked the claimant to leave the office as his behaviour became aggressive towards Ms White. In the meantime, he asked other staff members to also leave the office. Much of this account is not in fact disputed by the claimant. And I therefore accept Mr Twinberrow and Ms White’s broad accounts of this incident.[46]On the same day, Mr Twinberrow tried to speak to the Claimant about a separate incident when he had allowed a prisoner a personal phone call without getting prior permission from a supervising officer. During the conversation in Mr Twinberrow’s office, Mr Twinberrow says that the Claimant appeared to threaten Ms Lampreia (who was a Governor) who was in the office at the same time by referring to a temporary promotion and saying that he could get her moved. Again, little about this incident is disputed by the claimant. He accepts that he made reference to the temporary promotion and he accepts that he argued with Mr Twinberrow about the phone call. The claimant appeared to be angry with Ms White for reporting him and was again raising his voice shouting and pointing his finger at Mr Twinberrow. I consider that given little is in dispute about what happened in this incident, that I accept the Respondent witness’s accounts.[47]The claimant states that Ms Kelly had also allowed prisoners phone calls and had not been reported for doing so. Although this is quite possible, I do not accept that it had come to the attention of Ms White or any other managers at the point at which Ms White reported the Claimant. By contrast, Ms White did find out about the Claimant’s actions. I accept Ms White’s evidence that she treated everybody the same and had phone calls been given without her permission, she would have asked any officer not to do it again. I also accept Ms White’s evidence that the claimant allowing a phone call in the circumstances would have been something she really merely raised as a concern as opposed to being a significant disciplinary matter. The only reason she decided to report the situation to Mr Twinberrow was because when she raised it with the Claimant, he became very defensive. Further, I accept that Mr Twinberrow would not have done anything more than speak to the claimant about this incident had the claimant not become irate when confronted with his actions.[48]There were therefore two separate incidents on 4 May 2022 when the Claimant became angry and verbally aggressive with his colleagues, both of which were witnessed by Mr Twinberrow.[49]I accept the respondent’s overarching narrative of evidence that it was the claimant’s response to matters which caused them concern as opposed to the incidents that led to the discussions in the first place. I accept this because, throughout these proceedings, the claimant did not in any significant way challenge the respondent’s accounts of the incidents when he became irate. At the time of the incidents or shortly thereafter he often apologised for them thus indicating that he knew he had overreacted, and finally, because during this hearing he spent most of his time trying to establish that he had been right to undertake the actions that he had (i.e. allowing prisoner phone call, giving a prisoner television). His conviction that he had done the right thing meant that being challenged about it caused him anger. However, the focus of the Respondent’s subsequent actions were his reaction, not the incidents themselves.[50]Following the incidents on 4 May, Mr Twinberrow met with the Claimant on 9 May. Following that meeting, Mr Twinberrow sent the claimant an email on 10 May (p200) summarising what had been discussed and confirming that he had offered the Claimant support including referring him to occupational health. At no point did the Claimant take up the First Respondent’s offer of an occupational health referral. His evidence on this point was mixed. He has not given me a convincing explanation for not engaging with occupational health. He has also denied that had he attended such an appointment, it could have led to him being referred for anger management support. I accept the respondent’s evidence that access to programs such as anger management counselling would have been via the occupational health route and that they could not simply be actioned by managers without an occupational health referral. I had no evidence to support the Claimant’s apparent assertion that there was a different route to receive anger management support. Performance management[51]I accept Mr Tinwberrow’s evidence that because of the two incidents on 4 May 2022 and his subsequent conversation with him on 9 May, he decided that further action was required to manage the Claimant’s behaviour and he invited the claimant to a formal performance meeting on 1 June 2022.[52]The letter inviting the claimant to that meeting notified him of his right to be accompanied. The letter also indicated the possible outcome of such a meeting namely that it was possible that a first written warning would be issued. I do not accept that such a warning amounted to a predetermination of the meeting either in this letter or any of the subsequent letters. It is standard that any such letter should notify the individual of the seriousness of the possible offence and the possible outcome so that they can prepare accordingly. Were a letter like this not to include such information it is very likely that it would not satisfy the ACAS code on disciplinary procedures.[53]The Claimant was accompanied by his union representative Ms Uwede. There was a notetaker in attendance at the meeting. I accept Mr Twinberrow’s decision to give the claimant a first written warning occurred because of the claimant’s behaviour on 4 May 2022 and the fact that he had already received informal advice from both Mr Ceglowski and Mr Twinberrow in relation to his behaviour in almost identical circumstances. I accept Mr Twinberrow’s evidence that he did not take into account the claimant’s race, age or sex when making that decision. There was a clear set of circumstances where the Claimant had repeatedly behaved inappropriately towards colleagues that prompted Mr Twinberrow to issue the warning.[54]The Respondent decided to deal with this as a performance matter (as opposed to a conduct matter) and offered the Claimant support, including a referral to Occupational Health, in order to manage the matter. The Claimant was given clear information as to what he had done wrong and how he could improve. The matter was not treated as a disciplinary matter.[55]The first written warning was given to the Claimant on 1 June 2022. The Claimant had the right to appeal which he did not do.[56]Subsequently, by letter dated 4 August 2022, Mr Twinberrow invited the Claimant to another performance meeting by letter dated 18 August 2022. The letter informed him of his right to be accompanied at the meeting and told him that the outcome might include a second written warning. It provided him with details of the Employee Assistance Programme.[57]The decision to call an additional performance meeting was prompted following two further incidents. The first where he was told by Mr Twinberrow that he should check with a senior officer before giving a prisoner a phone call (it is not clear on what date this occurred) and in response he behaved aggressively telling Mr Twinberrow that he would be taking the matter to his local MP and to the Governing Governor. The second was that on 20 July 2022 he had an argument in the Orderly’s office.[58]The Claimant again accepted that he had responded negatively when challenged. However, he continued to maintain that he had been right in his original decisions regarding the phone call or the situation that led to the incident in the Orderly’s office. He did not suggest that his response when spoken to about them was appropriate. Instead what he sought to suggest was that his response was justifiable because he had done nothing wrong to prompt being spoken to about the phone call and the incident in the Orderly’s office.[59]Mr Twinberrow had another meeting with the Claimant on 18 August. There was not a note taker present at the meeting so Mr Twinberrow took notes. I had a copy of those brief notes. Mr Twinberrow’s oral evidence was that they were sent to the Claimant to comment on them. He accepted that there was no difference between this meeting and the other performance management meeting where he did have a notetaker. However he could not recall the reason for not having one but surmised it would have been due to availability of a colleague. I accept that explanation as I had no reason to disbelieve it given that the Claimant did not disagree with the contents of the notes nor what was discussed at the meeting.[60]As a result, of these further incidents, Mr Twinberrow issued the Claimant with a final written warning due to his continued poor performance. This was sent to the Claimant on 18 August 2022. The letter included details of a review period to discuss progress over the following month and set a date for a meeting on 15 September 2022 to consider whether the review period should lead to the next stage of the managing proof performance policy. The Claimant did not appeal against this decision though details of how to appeal were provided.[61]I was not told about whether the subsequent review meetings occurred. Mr Twinberrow’s statement says that he continued to have regular contact with the Claimant but there were no further formal proceedings prior to the Claimant’s suspension in November so I infer that the review period passed without note and no further performance matters were raised with the Claimant. Misconduct allegations[62]On 11 October 2022, the Claimant was involved in an incident with Ms Gibson. During that incident, the Claimant became irate and it was not in dispute that the Claimant shouted and swore and that Ms Gibson and had to be escorted from the office by two colleagues because she was upset. It was also reported to Mr Ceglowski that later on the same day the Claimant had been aggressive in a phone call with Mr Kerr and in the Orderly office.[63]Ms Gibson’s email to Mr Kerr (the Orderly or Custodial Manager), dated 11 October, stated that she felt threatened by the Claimant’s behaviour. I accept that this was her genuine feeling at the time and that the reason she reported the Claimant was his behaviour that day. As a result, Mr Ceglowski decided to suspend the Claimant on 12 October 2022 given what he considered to be a serious threat to a colleague. He also commissioned an investigation into the incident which was undertake by Mr Addyman.[64]I accept that Mr Ceglowski made the decision to suspend the Claimant because he had displayed very similar behaviour on several occasions previously and despite a final written warning on a performance basis, the Claimant had not changed his behaviour and this incident appeared to have caused a colleague to be scared that he might physically hurt her. Mr Ceglowski therefore considered that the Claimant’s behaviour had moved from being a performance issue to being a disciplinary issue. Suspension and Investigation[65]The Claimant says that procedurally there were errors in his suspension as he was not issued with the Terms of Reference for the investigation on the same day that he was suspended. The relevant policy gives no information that there was any need for them to be provided to him on the same day. I accept Mr Ceglowski’s evidence that he had to find someone to undertake the investigation and that this could have led to the delay. It is clear however that the Claimant was given the Terms of Reference before the investigation interview he had with Mr Addyman and he was therefore able to respond to the allegations at the relevant time.[66]Mr Addyman did not send the Claimant a copy of the disciplinary policy. Instead he told the Claimant that he could access it on the intranet. Everyone agreed during the hearing that this would be impossible on suspension as the Claimant had no access to the intranet from home. The Claimant was sent a copy of the policy when he asked on 14 December 2022.[67]The Claimant did not raise any concerns regarding Mr Addyman’s investigation apart from an oblique reference to its delay. His complaint appeared to mainly be that no such investigation was launched into Ms Gibson and Ms White’s behaviour particularly after he had submitted a grievance against them which raised serious allegations regarding their performance and behaviour. The Claimant had submitted that grievance on 7 November 2022.[68]I accept that Mr Ceglowski asked Mr Obaniyi to deal with the Claimant’s grievance on 9 November 2022. It is not clear why the grievance was not duly investigated by Mr Obaniyi. The Claimant says that he was encouraged to drop it as it would not be good for the outcome of his disciplinary hearing. I had no documentary evidence on this point. I note that there is no correspondence with the Claimant’s union representative about this either.[69]The Respondent accepts that it did not pursue any separate investigation into Ms Gibson or Ms White regarding that grievance. I did not have an adequate explanation for that failure. Whilst I accept that there was no need for it to halt or pause its investigation into the Claimant at this point, it is concerning that given the seriousness of the allegations, these allegations were not properly investigated.[70]I find that Mr Addyman’s investigation and report into the Claimant was thorough. He interviewed all necessary individuals including 2 prisoners who witnessed the events, he reviewed the CCTV footage, he took into account the additional information provided by the Claimant and the performance related matters which were very similar to those which had taken place beforehand. He concluded that there was a case to answer for gross misconduct as he found that the Claimant acted in an aggressive and inappropriate manner, that he put Ms Gibson in fear of violence and that it was not credible that Ms Gibson was the aggressor. He also found that the Claimant was angry and aggressive towards Mr Kerr but that Mr Kerr did not feel threatened by the situation.[71]The delay in producing the report (11 October until 6 December) was not explained to me. I accept that the Claimant must have felt worried and anxious at home on suspension whilst the investigation was undertaken and that although the Respondent signposted him to support, it would have been better if the report had been compiled earlier.[72]It was not unreasonable for Mr Addyman to reach a conclusion that the behaviour complained of was likely to contravene the conduct and disciplinary policy and that the situation needed to be tested as an allegation at a disciplinary hearing. This was not him prejudging the outcome of the hearing but stating his conclusions following his report.[73]As a result of the report Mr Twinberrow escalated the matter to Governor Amy Frost because it was potentially an act of gross misconduct and she was the only person to have authority to determine a possible dismissal.[74]The Claimant was informed of this and it was discussed with him on 14 December 2022. The Claimant was told that his suspension would be continued until the conclusion of the disciplinary process. Following that discussion with Mr Ceglowski, the Claimant was sent a copy of the disciplinary policy. This was the first time the Claimant had received a copy of that. He had not been able to access it via the intranet as he was not at work following his suspension. Disciplinary meeting[75]Ms Frost wrote to the Claimant inviting him to a meeting on 23-24 January 2023. The Claimant was informed of the possible outcome of the meeting (i.e. a sanction up to and including dismissal) and of his right to be accompanied at the hearing.[76]The Claimant was accompanied by his TU representative. Prior to the meeting Ms Frost had access to and considered Mr Addyman’s report. During that meeting, the Claimant accepted the majority of the behaviours that he was accused of. Again, he focussed on the fact that he had been allowed or justified to undertake the various interactions or decisions with prisoners as opposed to disagreeing with the possibility that his behaviour when challenging his senior officers was inappropriate.[77]Ms Frost reviewed the report and met with the Claimant. She was aware that the Claimant had previously received performance warnings from Mr Twinberrow. However I find, on balance, that she approached this incident objectively. The Claimant was represented at the hearing by his trade union representative. The hearing took two days due to the availability of witnesses. The Claimant and his representative were given the opportunity to question the witnesses. They did not object at the time to the fact that the hearing took two days.[78]During the meeting and during Mr Addyman’s investigation, the Claimant alleged that the treatment he was receiving was because of or related to his race, asserting that others who had done similar things (granted phone calls etc) had not been treated in the same way. Again, he did not seem to understand that it was his response to the challenges as opposed to the incidents that led to the challenges which caused the respondent concerns.[79]As a result of the hearing, Ms Frost decided that although gross misconduct had been made out, it was appropriate to give the Claimant a final written warning and this was communicated to the Claimant that day and in writing on 6 February 2023. I find that the reason Ms Frost decided to give him a final written warning was that the Claimant had behaved in an aggressive manner to his colleague against a backdrop of having previously been warned by two other managers not to behave in that way. She took into account the difficult and pressurised working environment but found that despite the level of behaviour the officers frequently had to deal with from prisoners, the Claimant’s behaviour towards his colleague amounted to gross misconduct. She chose not to dismiss him because he was profoundly apologetic during the hearing, he indicated that he would not repeat the behaviour and she wanted to give him an opportunity to learn from the mistakes.[80]The Claimant did not appeal against that decision but asked to moved wings. He was moved to D wing in February 2023 where he says he was happy and continued to do his job well without any difficulties. Incidents in July 2023[81]Two subsequent incidents occurred on 12 July and 19 July 2023. involving the Claimant.[82]The incident on 12 July involved the Claimant and Daniel Herbert. Mr Herbert emailed two managers on the same day raising his concerns that he and the Claimant had a heated argument and that the Claimant’s attitude and behaviour were difficult. This was brought to the attention of Mr Ceglowski by Governor Lampreia.[83]The incident on 19 July involved Mr Bell, Mr Edumoh, Ms Jackson and the Claimant. The Claimant was frustrated because he had been told to miss his break. There then followed an incident in the Orderly office during which Ms Jackson complained later that day that she had found the incident frightening and was worried that the Claimant might attack her. The Claimant has said it was unreasonable or somehow discriminatory for Mr Ceglowski to rely on her email given that it was sent several hours after the incident. I find that it was reasonable for Mr Ceglowski to view an email sent on the same day as an incident as capable of being reliable and resulting in a decision to suspend whilst an investigation was undertaken. Suspension[84]The Claimant was suspended again on 20 July 2023 by Mr Ceglowski. This time he was given the suspension letter and the Terms of Reference on the same day. Mr Ceglowski commissioned Stuart Kyle (Governor) to investigate the complaints. I accept that the reason Mr Ceglowski suspended the Claimant was because of the allegations against him regarding the incidents on 12 and 19 July 2023.[85]The Claimant appealed against the suspension on 21 July 2023. That was rejected by Ian Bickers, Prison Group Director for London on 24 July 2023. Disciplinary investigation[86]The Claimant was not sent or given an invitation letter to the disciplinary investigation until after the investigation interview with Mr Kyle. His witness statement says that he was verbally asked to attend on a day when he was attending the premises several days later to process his timecard. Whilst he was there Mr Crump asked him if he would be comfortable being interviewed that day by Mr Kyle. The Claimant agreed on the basis that he would receive the letter but he never received the invitation letter.[87]It was not clear to me from the evidence I had, but it appears that the Claimant was accompanied by Mr Crump as his work colleague at that meeting. I find that the Claimant understood what the interview was about as he had been suspended and told at that point. In the interview notes for the investigation he was asked if he had seen the complaint email from Ms Jackson and he confirmed that he had. I therefore consider that it was reasonable for the Claimant to be asked to attend the meeting without having received the invitation letter because he knew he could be accompanied at the meeting (and was) and he knew what topic he was going to be asked questions about and had access to the relevant documents beforehand. Finally, I note that this was an investigation meeting not a disciplinary meeting and therefore the ACAS code does not require any specific period of notice or accompaniment albeit that the Respondent’s policy might do.[88]During the investigation, Mr Kyle was told by Ms Jackson during her interview, that she considered that the Claimant behaved in this way because she was a woman. Subsequently Mr Kyle put to other witnesses whether they agreed that the Claimant behaved in this way towards women particularly. Others disagreed with Ms Jackson and most seemed to confirm that the altercation had not occurred or been made worse in some way because Ms Jackson was a woman.[89]Although accounts of the 19 July 2023 incident differed, with Mr Bell stating that he felt the Claimant’s behaviour was frustration as opposed to indicating any aggression, Mr Kyle reached the conclusion that the Claimant had been aggressive and that the matter ought to be considered as a disciplinary matter. His report acknowledges that the evidence from the individuals differed and he weighed it up in reaching his conclusions and recommendations.[90]I find that Mr Kyle’s investigation was reasonable. He interviewed all relevant witnesses. He was aware of the complaint made by the Claimant against Ms Jackson and Mr Herbert and although it was not investigated, it is clear that Mr Kyle and Ms Frost were aware of the allegations therein when they reached their conclusions.[91]Mr Kyle’s conclusion was that Mr Herbert and the Claimant had both behaved unprofessionally on 12 July and that on 19 July the Claimant’s behaviour was such that he had made a threat against Ms Jackson that was worthy of a disciplinary process. He did not prejudge the outcome nor did he suggest what disciplinary outcome would be appropriate - merely that it should be considered at a disciplinary hearing.[92]It is not clear what date the report was produced but it was at some point between the suspension and the letter inviting the Claimant to a disciplinary hearing dated 13 September 2023. The Claimant complained in the appeal against Ms Frost’s decision that the report had been produced outside the 28 day time limit. I accept that it was. I also accept that the Claimant remained on suspension for over 2 months which is a significant period of time.[93]Ms Frost reviewed the report. As the matter was potentially gross misconduct resulting in dismissal, she was the only person of sufficient rank to consider it. Disciplinary meeting[94]Ms Frost’s letter dated 13 September 2023 invited the Claimant to a disciplinary meeting and informed the claimant of the possible outcome from the process and of his right to be accompanied at the meeting. It is not in dispute that he was provided with all relevant information and evidence that would be considered at the hearing. In addition it is clear that the Claimant and his union presentative were able to question all the witnesses at the hearing. The Claimant has not raised any issues of unfairness in relation to the process save for the fact that the hearing took place over two days. This is not in dispute. I also accept Ms Frost’s evidence that the Claimant’s complaints regarding possible race discrimination were carefully considered by Ms Frost. I accept this because of the evidence Ms Frost gave to me during the hearing on this point, and because, overall, Ms Frost was a thoughtful witness before me who appeared to give careful consideration to the evidence and when questioned by either the Claimant or the Tribunal, was able to give clear and evidenced answers demonstrating how and why she had considered issues and evidence before her.[95]Ms Frost determined that the incident on 12 July did not warrant any disciplinary sanction as it was two colleagues behaving as badly as each other. The Claimant during cross examination wanted to know why his colleague, Mr Herbert, was not investigated equally to him. Ms Frost was not able to answer that persuasively. If the investigation indicated that both had behaved badly, the fact that the investigation had initially only been into the Claimant ought not, in my opinion, to prevent the other individual’s behaviour being considered and a decision taken about potential disciplinary sanctions could follow.[96]Nevertheless this would not have changed matters for the Claimant as no action was taken against him either regarding the 12 July incident. With regard to the incident on 19 July with Ms Jackson, Ms Frost found that, although there were different versions of events given, on balance, she found that the claimant had been unprofessional in his conduct and caused Ms Jackson to be scared whilst she was at work. She also considered the Claimant’s allegations of race discrimination and different treatment because of race. She found that she had no evidence to suggest that colleagues had been treated differently because of their race.[97]Ms Frost concluded that this meant that the Claimant had committed misconduct but not gross misconduct. However, because of the final written warning, Ms Frost decided that the Claimant ought to be dismissed. She concluded that the behaviour on 19 July 2023 was of the same type that the Claimant had now been warned or disciplined about on at least 5 previous occasions in the last 2 years. He had not demonstrated any willingness or ability to change despite his apologies and his acknowledgements that he had been involved in each of the incidents. In his evidence to the Tribunal the Claimant stated that since he had been transferred to D wing, he had not had any disagreements with people and that it was only off the wing that the July incident had occurred. However, given that his transfer had only occurred in February 2023 it seems to me that the period between that and the next altercations in July 2023 is relatively short particularly by reference to a 2 year final warning on his record. Two further incidents had occurred before even 6 months had lapsed.[98]I accept Ms Frost’s evidence was that she considered alternatives to dismissal but found that dismissal was appropriate in all the circumstances.[99]The Claimant complained that Ms Frost had not considered the fact that he had domestic and financial difficulties at the time. She said that she recognised that dismissing someone was a significant step and always had repercussions but that from a workplace point of view the appropriate decision was to dismiss him. The Appeal[100]The Claimant appealed against the decision. Mr Lucas heard his appeal. He did not reinvestigate the matter but considered Ms Frost’s decision and the investigation that led up to it. He concluded that it had been a procedurally fair process and that Ms Frost’s decision was reasonable. He did not uphold the appeal.[101]There were no procedural challenges to the fairness of the appeals process and I have not been taken to evidence that suggests any procedural flaws with the appeals process.[102]I accept Mr Lucas’ evidence that he properly considered the decision and the evidence upon which it was based including the investigation report, the witness statements and the transcripts of the disciplinary hearing. He also met with the Claimant and his union representative and considered all points raised by them.[103]I had no evidence to substantiate the allegation that Mr Lucas’ conclusions were reached because of the Claimant’s race, age or sex or that his decision was related to the Claimant’s race, age or sex.
Conclusions
[104]I have only reached conclusions in respect of the claims brought by the Claimant. During these proceedings he has introduced new facts and new ‘grievances’, often through his questioning of the witnesses. I am only deciding the claims as have been identified as a claim in the list of issues (as broadened to include the Further Information provided by the Claimant).[105]I have no doubt that Wormwood Scrubs is challenging place to work. This was acknowledged as much by the managers who gave evidence before me, particularly Ms Frost. I have had in mind that overt discrimination rarely takes place in front of witnesses or is clearly substantiated by documentary evidence. A Tribunal is often faced with a ‘he says/she says’ scenario and must make a finding on the balance of probabilities as to what happened and then, apply the relevant burden of proof to establish whether discrimination has occurred.[106]Nevertheless, in each case brought before an Employment Tribunal, the Claimant must provide some sort of evidence even if it is only in their own witness statement, that deals with the facts in dispute and addresses the issues of the case and in particular how or why they say that the behaviour they experienced was, in their view, less favourable treatment than someone who does not share their protected characteristic. A Claimant in a discrimination claim cannot simply cite negative experiences from colleagues or the respondent overall and then ask a Tribunal to find that because they are negative experiences they are therefore acts of discrimination. There must be something more. Direct Discrimination[107]The Claimant identified as being of Asian background and/or not Caucasian. He said that he was over 40 (he is 52) and he identifies as male. Whilst I accept that he is a litigant in person and that discrimination claims are often difficult to comprehend and articulate, it appeared from all his questions that his main concerns, for the majority of his case, were that the treatment occurred because of his race as opposed to his sex or age. On occasion he distinguished between himself and how others were treated by sex, but not because they were treated less favourably, but because he felt that they had made allegations against him of sex-related behaviour (e.g. the suggestion that he treated female colleagues differently). I identify them below where relevant. At no point did he articulate either in his witness statement or in his questions to the respondent witnesses, how his age caused the detriments he relies upon.[108]As was adeptly summarised by Ms Mellor in her submissions, the Claimant has pointed at behaviour he did not like and then pointed at his characteristics and asked me to draw a line between the two without anything more. The Claimant’s sense of grievance is clear, but he has not linked it to his race, sex or age.[109]The burden of proof is on the Claimant to facts from which an employment tribunal could decide or draw an inference that such an act has occurred (on the balance of probabilities). If he does that then the burden switches to the Respondent to demonstrate that any such treatment was for a non discriminatory reason. Alternatively, I can cut to the sometimes more pragmatic approach, where it is clear, as to what was the reason for the treatment alleged. I take each factual allegation in turn. Ms Mackinnon allegations (4.1.1 and 4.1.2)4.1.1 During the training for his role in April 2020, the person delivering the training4.1.2 During the training, the trainer created a hostile environment for black and Asian officers[110]I conclude that the Claimant has not established before me that Ms Mackinnon looked down on him compared to other white people. I accept that he has demonstrated that a complaint was made by him and by colleagues about Ms Mackinnon and that the other complainants were three black women as this was not refuted by the respondent’s evidence. However what the complaint was about or what the Claimant says she actually did or said to him, has not been established nor that it involved the specific allegations that she ‘looked down on’ the Claimant.[111]Even if the Claimant has established that there is a set of circumstances (namely 4 non-white employees bringing a complaint about Ms Mackinnon’s behaviour towards them) that shifts the burden of proof to the Respondent, it is not clear what exactly is alleged by the Claimant for the Respondent to refute. The Claimant has given me no factual detail as to what Ms Mackinnon actually did that constituted either looking down her nose or creating a hostile environment for black and Asian officers. Without that evidence, I do not conclude that he has established any treatment capable of being a detriment or amounting to harassment. Limitation[112]Further, I conclude that these complaints are out of time. This relates to a specific, limited period of training in April 2020 or a set of incidents that all occurred during the training in April 2020. The Claimant has not explained why he did not raise this matter in Tribunal earlier. The incidents clearly only involved Ms Mackinnnon and were solely related to the training the Claimant received and are therefore separate from any process of ongoing performance management or disciplinary action that forms the basis for the later incidents. I understand that the claimant claims an ongoing state of ‘bullying and harassment and discrimination’ (4.1.8) but he has not evidenced that at all. I therefore conclude that the complaints against Ms Mackinnon are out of time.[113]I have considered whether it is just and equitable to consider the claims despite the fact that they have not been brought within the primary limitation period and I conclude that it is not. This is primarily because the allegations are vague and there is very little evidential basis for them. The Claimant has not explained why he did not raise it earlier and whilst I understand that raising complaints whilst in employment is often something that individuals do not wish to do for fear of reprisal or inviting further discrimination, the Claimant was not an individual who feared speaking out. He has told me that he did raise issues concerning Ms Mackinnon at the time, and subsequently, and he continued to raise complaints about colleagues thereafter. I therefore do not accept that the Claimant feared speaking out. It is clear that action was taken against Ms Mackinnon when colleagues complained and therefore there is no suggestion that, in this instance, the Respondent would simply ignore any concerns. In short there is no reason for the delay and the claims are significantly out of time. Although there is prejudice to the Claimant in not allowing the extension, it is outweighed by the prejudice to the Respondent of having to defend the vague allegations so far away from the time that they occurred. I therefore conclude that the claims of direct discrimination and harassment involving Ms Mackinnon are out of time. Limitation in relation to other discrimination claims[114]In relation to the remainder of the allegations raised I find that they were all capable of being a continuing act or a series of incidents commencing with the guidance that Mr Twinberrow gave in May 2022 and culminating in the Claimant’s dismissal in 2023.[115]Although there was a gap between February 2023 and the incidents in July 2023 which the Claimant has focussed on in respect of the fairness of his dismissal, I find that there is sufficient link between the incidents and the performance and disciplinary processes both in terms of time and in terms of the subject matter, for them to form a series of events.[116]If I am wrong in that, the proximity in timing and substance of the performance and subsequent disciplinary processes mean that I accept that it is just and equitable to extend time and consider any incident that is out of time. Although the Claimant has not given a reason for the failure to raise the issues earlier I accept that he had hoped that his position within the Respondent would stabilise and that raising a complaint before his dismissal could have been detrimental to the relationship. Mr Twinberrow (4.1.3 and 4.1.5) 4.1.3 CM Andrew Twinberrow giving the claimant formal and other warnings on 18/19 4.1.5On 4 May 2022, CM Andrew Twinberrow telling the claimant off in the briefing[117]I conclude that Mr Twinberrow gave the Claimant advice and guidance in respect of the incidents January and May 2022 because the Claimant had behaved poorly towards colleagues. It did not seem in dispute before me that the Claimant lost his temper with colleagues, raised his voice, behaved in a manner which some interpreted as aggressive and which everyone else found unprofessional.[118]Mr Twinberrow did not give the Claimant warnings because of his actions regarding prisoners, something which the Claimant has found difficult to grasp and therefore sought to justify throughout these proceedings. The guidance and warnings were related to the Claimant’s behaviour towards colleagues when he was spoken to about his actions regarding prisoners.[119]I accept that Mr Twinberrow gave the warnings because of the Claimant’s inappropriate behaviour towards his colleagues. The Claimant has not established a set of facts from which I could infer that the warnings were given because of his race, age or sex. Although not raised before me as an argument, it is common knowledge that the ‘angry black man’ is a racist trope which can (consciously or unconsciously) influence the manner in which men and women who are not white are perceived by colleagues to be more physically threatening than their white counterparts. I have born that in mind when considering whether the Claimant has established facts from which I could consider whether he has been treated less favourably. Yet the Claimant has still not provided me with sufficient facts from which I could draw that inference and/or which would establish that the burden of proof should be shifted to the Respondent. Instead, the Claimant appeared to concede that, for the most part, his colleagues’ descriptions of his behaviour towards them or other colleagues were accurate but that he had been justified or at the very least he could explain why he was acting that way. His explanation both at the time and before me was that he was justified in being angry and aggressive towards colleagues because he had not behaved or performed differently towards prisoners than his colleagues had. Others had also given out similar ‘benefits’ to prisoners and not been challenged.[120]The comparators that the Claimant chose to make reference to during the tribunal process were other colleagues who had given out similar benefits to prisoners and not been given written warnings through a performance management process. However I accept that as and when colleagues gave out such benefits inappropriately and it came to the attention of Ms White Mr Twinberrow, or other senior officers, they would have been spoken to in similar terms. The difference would be that I had no evidence that they responded to those conversations in a verbally aggressive or threatening way such as the Claimant did during these incidents. They are therefore not appropriate comparators.[121]My conclusion that Mr Twinberrow’s actions were not because of the Claimant’s age, race or sex are reinforced by the fact that he attempted to deal with the matter as a performance issue and he attempted to provide support to the Claimant by referring him to Occupational Health.[122]In relation to the incident on 4 May 2022 during the meeting, I find that Mr Twinberrow did not tell the Claimant off in front of other staff members because of his race, sex or age. He asked the Claimant to stop criticising a senior officer in front of everyone else and asked him to speak to him separately. I have accepted Ms White and Mr Twinberrow’s account of the incident. I conclude that the Claimant felt aggrieved that his own behaviour had been the basis for the earlier conversation and ‘learning’ and that therefore he wanted to justify his actions by criticising Ms White’s behaviour. He was told that this was inappropriate. This had to initially be done in front of other staff because it was a team meeting. Thereafter the conversation was continued with only the senior members of staff present. That was done in an effort to address the Claimant’s concerns in a professional way. The fact that the Claimant chose to continue unprofessionally was not the fault of Mr Twinberrow. I find that the reason for this incident was the Claimant’s behaviour and it was not because of his age, race or sex.[123]In relation to the decision to suspend the Claimant, Mr Twinberrow did not make the decision to suspend the Claimant, Mr Ceglowski did. Mr Ceglowski made the decision to suspend him on 12 October 2022 because he had displayed very similar behaviour on several occasions previously and despite a final written warning on a performance basis, the Claimant had not changed his behaviour and Ms Gibson’s email suggested that she was scared that he might physically hurt her. Mr Ceglowski therefore considered that the Claimant’s behaviour had moved from being a performance issue to being a disciplinary issue. The Claimant has not provided me with any evidence that establishes a set of facts from which I could infer that this decision was made because of the Claimant’s age, race or sex. I conclude that the reason why this treatment occurred was because of the Claimant’s behaviour and I accept Mr Ceglowski’s explanation for this decision. Mr Ceglowski (4.1.4) 4.1.4 The second respondent giving the claimant a final written warning in February 2023 and Governor Dom Ceglowski suspending him in July 2023[124]The allegation against Mr Ceglowski is that he suspended the Claimant in July 2023 because of the Claimant’s age, race or sex. I have found that the decision to suspend the Claimant in July 2023 was taken because of the two incidents that occurred on 12th and 19th July 2023.[125]In relation to the 12th July, it is clear that the other person in that incident did not get suspended. The Claimant was therefore treated differently from Mr Herbert. However, there are significant differences between Mr Herbert’s situation at the time and the Claimant’s. At the point that Mr Ceglowski took the decision to suspend the Claimant, he only had the complaint from Mr Herbert about the Claimant. He did not, at that time, have the Claimant’s version of events. At the time of making the decision to suspend, Mr Ceglowski also had a second complaint about the Claimant about a different incident on 19th July. In this second incident there was no evidence to suggest that anyone else had behaved badly within the incident in question. The Claimant was the common denominator and had been involved in both incidents unlike Mr Herbert. The complaints had, at the time that he suspended the Claimant, only been made about the Claimant and Mr Ceglowski only made the decision once he became aware of both incidents, not just the incident on 12 July. Further, the Claimant had a final written warning on his record for very similar behaviour from only 5 months earlier.[126]Therefore I conclude that Mr Ceglowski made the decision to suspend the Claimant because of his behaviour on 12 and 19 July not his age, race or sex and he has provided no facts from which I could determine that the burden of proof should shift.[127]My primary finding is that there were sufficiently different circumstances between the Claimant and Mr Hebert to show that Mr Hebert is not a valid comparator. In the alternative, if the fact that Mr Hebert was treated differently has shifted the burden of proof to the Respondent then I find that the Respondent has provided a non-discriminatory reason for the treatment. I accept the Respondent’s evidence that the cumulative effect of the two incidents reported against the Claimant, the history of similar behaviour as well as the seriousness of the incidents involved particularly that of 19th August were the genuine reason for the Claimant’s suspension and any differential treatment between the Claimant and Mr Hebert. Amy Gibson and Marcia White (4.1.6) 4.1.6 SO White and SO Gibson reporting the claimant for doing work correctly on 18[128]The Claimant alleges that Ms White and Ms Gibson reported the Claimant for doing work correctly on 18 January 2022, 4 May 2022 and 18 August 2022. I have found on balance that it is more likely than not that these two individuals did report the Claimant about the January incidents. Ms White did not refute that she may have reported the Claimant in May and August. The Claimant’s questions to both witnesses centred around how he had been correct to behave in the way that he did and that other colleagues also, for example Ms Kelly, allowed prisoners to make phone calls.[129]All the witnesses I heard from refuted that the Claimant had worked correctly in relation to those incidents. In relation to the serving of food to a prisoner, the Claimant said that his colleague had been there with him so it was incorrect to say that he had done this alone. In relation to the TV, the Claimant stated that he had discretion to reward a prisoner in this way after he had displayed good behaviour. Ms Gibson and Ms White and Mr Twinberrow all disagreed that he had acted correctly at the time.[130]Even if Ms Gibson and Ms White had the wrong impression of what had happened when the prisoner was unlocked, I find that their decision to report the Claimant was not because of his race, age or sex but because they genuinely believed what they were reporting to Mr Twinberrow. With regard to the TV – the Claimant does not dispute that he did this but maintains that he was right to do it or at least allowed to do it. All witnesses before me have disagreed and said he was wrong on this occasion. I accept their evidence and therefore the facts on which this claims is based are not made out – he was reported for not doing his job correctly on all of the above occasions.[131]Even if that is incorrect, I find that Ms White and Ms Gibson genuinely believed at the time that what he had done was incorrect and that was the reason for him being reported and the reason Mr Twinberrow spoke to him about it and sent a letter. I also consider that the reason he was reported to Mr Twinberrow in particular was because when Ms White or Ms Gibson raised it with him themselves, he had responded in a negative way hence them feeling the need to escalate it to Mr Twinberrow. I conclude that any prison officer who had performed their role in this way, and their managers had become aware of it, would have been reported in this way had they reacted to being spoken to about performance issues in the way that the Claimant did.[132]The Claimant tried to establish that Ms Kelly and Ms Stevens had behaved in this way and not been reported. Based on Ms White’s evidence in particular, I find that had she been made aware of Ms Kelly behaving in this way, she would have spoken to her or asked Mr Twinberrow to speak to her about it. I found Ms White to be a credible witness in terms of her style of management and her tolerance for performance of her officers.[133]Overall I do not accept that Ms White or Ms Gibson reported the Claimant for doing his job correctly. He did not do his job correctly. More importantly, their decision to report the Claimant to Mr Twinberrow did not occur because of the Claimant’s race, sex or age. Amy Frost (4.1.7 and 4.1.10) 4.1.7 The second respondent dismissing the claimant. 4.1.10 Second respondent made a decision to dismiss me on 2 November 2023 despite being made aware I was going through a very difficult period in my life and dealing with housing issues. I also told Second respondent I was the only bread winner of the family and I was responsible for three young children. First respondent abused me emotionally, treated me badly and also caused me psychological harm.[134]I find that Ms Frost initially gave the Claimant a final written warning on 6 February 2023 because of his behaviour and not because of his race, age or sex. I reach this conclusion for various reasons:(i) She could have dismissed him as gross misconduct was made out but gave him the benefit of the doubt because he had behaved in a way which left a colleague frightened of him and had to be physically escorted out of the room following his behaviour.(ii) The Claimant did not dispute that he had behaved in an unprofessional manner albeit he appeared to argue he was justified in some respects.(iii) She reached her conclusion taking into account the fact that the Claimant had behaved in a similar way during several previous incidents which had led to the Claimant receiving guidance and formal warnings regarding his performance but to no avail.(iv) I found Ms Frost to be a thoughtful witness who had carefully considered the evidence before her including a detailed and thorough investigation by Mr Addyman and the Claimant’s own evidence.[135]I was provided with no evidence regarding possible age discrimination. The Claimant has simply alluded to the fact that several of his colleagues were younger than him – though Ms White pointed out that she is older than him. I believe from his answer to questions from Ms Mellor that he felt that, as an older person training and entering the role, that he was disrespected by the younger people. However I had no evidence of that at all.[136]I had no evidence that the decision to give him a final written warning was motivated to any degree by his sex. It is correct that the two people who formally complained about him were women, but it was clear from the investigation and Ms Frost’s conclusions that the Respondents did not consider the Claimant’s treatment to his colleagues as occurring because the individuals involved were women. The fact that Mr Kyle asked those questions is addressed below – however, I do not consider that this factor was part of Ms Frost’s decision making process. Nor, more importantly, was the fact that the Claimant is a man, the reason for his treatment. I conclude that a woman who had made any colleagues feel the same way would have been treated in exactly the same way.[137]I reach the same conclusion when considering Ms Frost’s decision to dismiss the Claimant. I reach that decision because:(i) Ms Frost accepted that the Claimant’s behaviour on 12 July did not warrant a disciplinary sanction at all.(ii) She accepted that the behaviour on 19 July did not warrant a finding of gross misconduct.(iii) She had previously decided not to dismiss the Claimant.[138]Had she been motivated by the Claimant’s race, sex or age, I consider it more likely than not that she would have reached harsher conclusions regarding the Claimant’s behaviour at the earlier stage and/or that she would have concluded that the incidents on 12 or 19 July constituted gross misconduct. Instead, her decision to dismiss was reached because, despite having a final written warning on his record, which in itself had been imposed because of the pattern of behaviour from the Claimant, the Claimant had again behaved very poorly towards a colleague. It was his pattern of behaviour and his failure to learn from the repeated warnings he had received, that was the reason why he was dismissed.[139]I conclude that the Claimant has provided no evidence that a person in the same circumstances who was either younger, white or female, who had also persistently behaved in the manner that he did, and had a final written warning for the same or very similar behaviour, would not have been dismissed by Ms Frost as well.[140]At 4.1.10 there appeared to be a duplicate allegation against Ms Frost regarding the dismissal. The Claimant asserts that the decision to dismiss was made despite Ms Frost knowing that the Claimant was having a very difficult period in his private life dealing with housing issues, being the only bread winner and being responsible for three young children. I consider that Ms Frost did take this into account and consider that it was not a sufficient reason not to dismiss the Claimant. I consider that any officer, of any characteristic, despite having these domestic circumstances, would have been treated in the same way as the Claimant was.[141]The Claimant alleges that this amounted to abuse and caused him psychological harm. I had no evidence of facts which could amount to abuse though no attempt has been made by the Claimant to define this term in these circumstances. Stuart Kyle (4.1.11 and 4.1.12) 4.11 During her interview with the investigating officer Governor Stuart Kyle, Custodial Manager Gemma Jackson made the following comment about me, “I am more aware of how he is with women.” I felt offended after reading the report. 4.12 During his interview the investigating officer Governor Stuart Kyle also asked two male staff and two female staff if I had any issue or ever treated any female staff differently because they are a woman or female. They all said no. I was very offended when I read Governor Kyle’s investigation report.[142]The allegations against Mr Kyle arise from his investigation into the incidents on 12 and 19 July and in particular in relation to the incident on 19 July. The first allegation concerns the actions of Ms Jackson saying ‘I am more aware of how he is with women.” It is difficult to say whether Ms Jackson would have said that about a woman who had behaved in the same way that the Claimant did on 19 July. Ms Jackson did not give evidence before me so it was not put to her.[143]However, I find that the reason why Ms Jackson made this comment was because of her perception of the Claimant’s behaviour which was described by many different individuals, men and women, as unacceptable. She perceived that it was occurring because she was a woman and made that observation to Mr Kyle. It was the Claimant’s aggressive behaviour that prompted her comment, not the fact that he was a man.[144]As a result of her making that allegation, Mr Kyle asked questions of the other witnesses about the reason behind the Claimant’s behaviour. I conclude that he did this because of the allegation against the Claimant about his behaviour not because of his race, age or sex. Had an allegation been made by Ms Jackson that a woman behaved in a certain way towards other women, the same question would have been asked as part of the investigation.[145]I therefore find that the reason why Mr Kyle included this in his report and asked other colleagues about it was the Claimant’s behaviour not his relied upon protected characteristics. The Claimant has not provided me with evidence to establish a set of facts from which I could infer discrimination absent an explanation from the Respondent. The fact that the Claimant was offended does not discredit the Respondent’s explanation for the events. General Allegations (4.1.8 and 4.1.9) 4.1.8 From the day I began working at Wormwood Scrubs Prison in April 2020 until the day I was dismissed in November 2023,I was subjected to persistent bullying ,harassment and discrimination primarily due to my age ,race and sex. These issues significantly impacted my ability to perform my duties, caused me considerable emotional distress and severely affected my mental health and self-confidence. 4.1.9 Several individuals were responsible for this mistreatment including Supervising Officer Donalda McKinnon, my line manager Custodial Manager Andrew Twinberrow, Supervising Officer Amy Gibson, Supervising Officer Marcia White, Governor Dom Ceglowski and Second respondent Amy Frost.[146]The Claimant has not provided evidence that substantiates a backdrop to his working life at the Respondent of persistent bullying, harassment and discrimination affected his ability to perform his duties, causing him emotional distress, severely affecting his mental health and confidence.[147]His evidence regarding direct discrimination issues is limited to the matters already discussed above. I have been provided with no evidence of other more generalised issues or circumstances amounting to direct discrimination and therefore cannot uphold this claim.[148]My overall conclusion is that the Claimant was not subjected to a continued backdrop of less favourable treatment because of his age, race or sex.[149]I do not uphold any of the Claimant’s claims for direct discrimination on grounds of race, age or sex. Harassment5.1.1 During the training for his role in April 2020, the person delivering the training5.1.2 During the training, the trainer created a hostile environment for black and Asian officers.5.1.3 CM Andrew Twinberrow giving the claimant formal and other warnings on 18/195.1.4 The second respondent giving the claimant a final written warning in February5.1.5 On 4 May 2022, CM Andrew Twinberrow telling the claimant off in the briefing5.1.6 SO White and SO Gibson reporting the claimant for doing work correctly on 185.1.7 The second respondent dismissing the claimant.[150]The factual basis for the above claims has already been discussed under the direct discrimination heading above. I do not repeat those conclusions or analysis. I conclude that the Claimant has not established that any of the incidents outlined at 5.1.1-5.1.7 related to the claimant’s age, race or sex.[151]I accept that much of the conduct is unwanted. I have born in mind that ‘related to’ is a much looser requirement than that required for direct discrimination (‘because of’) and that there is no need to establish comparatively less favourable treatment. Nevertheless, the incidents outlined in these claims have not been shown to be related to the Claimant’s race, age or sex in any way. The Claimant has not provided any evidence whatsoever upon which I could reach such a conclusion. On the face of it none of the allegations include language or behaviour which overtly relates to age, sex or race.[152]Sometimes however whether something ‘relates’ to a protected characteristic depends on context. In this case I have not been provided with any context from which I could reach the conclusion that the conduct related to the Claimant’s age, sex or race. The Claimant has not suggested that any of his behaviours related to any of those protected characteristics either literally or that the Respondent perceived his behaviour to relate to one of his protected characteristics. I therefore do not uphold the Claimant’s claims for harassment in relation to issues 5.1.1-5.1.7. Mr Twinberrow giving the Claimant a warning (5.1.9)_ 5.1.9 On 19 January 2022 CM Twinberrow gave me a warning.[153]Mr Twinberrow did not give the Claimant a formal warning on 19 January 2022. He gave the Claimant some advice and guidance following an incident on 18 January 2022. This was not part of any formal process and was not disciplinary action against the Claimant. This part of the Claim is therefore not upheld. Refusal to move the Claimant to a different wing (5.1.10 and 5.1.11) 5.1.10 On 2 June 2022 after CM Twinberrow gave me a first written warning, I requested to be moved to a different wing as the work environment of being micromanaged was toxic. My request was denied 5.1.11 On 18 August 2022 CM Twinberrow gave me a final written performance warning. I contacted Governor Ceglowski and requested to be moved to a different wing. My request was denied.[154]The Claimant’s evidence regarding these allegations was somewhat confusing. His witness statement says that he required support and that such support should have been in the form of a transfer. There are two allegations regarding the failure to move the Claimant from one wing to another. Mr Twinberrow said that the Claimant had asked him to be transferred but that as he did not have the authority to make such a transfer he would have escalated it. I had no evidence from his line manager as to why it was refused. Nevertheless I accept the overall evidence that officers who are subject to warnings for performance or conduct issues are not usually moved to a different wing until those issues are resolved. I did not have evidence from Mr Ceglowski regarding any transfer request made to him by the Claimant.[155]In addition, I understand that an opportunity to move wings was usually made by way of a two yearly cycle of requests to move wings and the Claimant did not put in any such request.[156]What is clear is that although refusing to transfer someone from one wing to another could amount to unwanted conduct, it has not been established in any way by the claimant that the decisions not to move him were related to his race, sex or age. I accept that on both occasions it is more likely than not the decisions were taken because the Claimant was being subjected to a performance process and he needed to have continuity of management through that. That is not related to his protected characteristics. That conclusion is further supported by the fact that at the point that the first conduct disciplinary process was concluded against the Claimant and he made another formal request to be moved wings, he was moved. Had the Respondents or Mr Twinberrow or Mr Ceglowski wanted to continue to harass the Claimant in relation to his age, sex or race, I find, on balance, they would have refused all requests including the one following the disciplinary outcome. Instead they allowed it. Micromanagement by Mr Twinberrow(i) Calling the meeting on 18 January 2022 and the way in which he handled that meeting and behaved during it (closing the door, having two SOs in the room, questioning the Claimant when he did not question the SOs, expecting the Claimant to use force against a prisoner)(ii) Challenging the Claimant for providing a prisoner with a TV(iii) Challenging the Claimant for giving a prisoner a kettle(iv) Challenging the Claimant for unlocking a prisoner(v) Sending the email dated 19 January(vi) The way in which he behaved or handled the 4 May 2022 meeting (raising his voice, having a meeting with SO White, the Claimant and nobody else behind a closed door, not listening to the Claimant or accepting his explanations)(vii) Him sending the email dated 10 May to Claimant(viii) Challenging the Claimant for giving a prisoner a phone call and his response when the Claimant explained himself(ix) Giving the Claimant a first warning on 1 June and the manner in which he behaved in doing so(x) Denying the Claimant a transfer to another wing(xi) Keeping the Claimant on B wing(xii) Inviting the Claimant to the meeting on 4 August 2022 (including the manner and content of the invitation and the content of the letter and including the possible outcome of a second written warning(xiii) Not having a note taker present during the meeting on 18 August 2022(xiv) The matters discussed during the 18 August 2022 meeting (including the issue regarding an incident on 20 July, making the decision not to take further action against another individual involved, undermining Officer Vincent on B Wing, claiming that the Claimant behaved unprofessionally)[157]The remaining allegations of harassment relate to Mr Twinberrow. allegedly micromanaging him. Many of the incidents are described already above. They all involve Mr Twinberrow challenging the Claimant’s behaviour or performance of his role.[158]I find that all of Mr Twinberrow’s actions have been explained by reference to the Claimant’s performance and his behaviour towards his colleagues. There has been no evidence before me that links them to his race, age or sex. The only sex-related comment was the comment by Ms Jackson and its subsequent investigation by Mr Kyle. That was potentially related to the Claimant’s sex, though it is better described as related to Ms Jackson’s sex as opposed to his. However this has not been pleaded as an act of harassment.[159]I accept that there were a number of situations where it was put to Mr Twinberrow that others were not suspended or investigated when the Claimant made complaints about their behaviour. This included men and women and colleagues who were Caucasian and not. I was not told what age each person was and the Claimant put no questions in relation to that characteristic.[160]I accept that there were a number of occasions when others appear not to have been investigated when they were found to have behaved as badly as the Claimant or when the Claimant made allegations against them. However, I do not consider that this means that the Claimant has established that his treatment related to his sex race or age. Although no comparator is needed to establish harassment, the fact that the other colleagues who were treated differently were across different ethnicities and genders and ages, reinforces the conclusion that his treatment occurred because of his behaviour and not his protected characteristics. I also note that a younger woman who was white was suspended, investigated and given a final written warning of two years (Ms Gibson) albeit in entirely different circumstances.[161]For completeness – I find that the challenges and the (manner of those challenges) to the Claimant’s performance outlined at (i) to (iv), (vi) and (viii) above occurred because of the fact that the Claimant carried out his role as prison officer and made decisions that caused low level concern and needed correction. Any behaviour by Mr Twinberrow in relation to these matters was proportionate and was a way of asking the Claimant to do his role better. It was not related to his protected characteristics. Mr Twinberrow’s behaviour was not intended to nor could it objectively be viewed as violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[162]I also consider that the way in which Mr Twinberrow sent informal warnings (vii) and subsequently conducted the performance management process and issued formal warnings ((ix) (xii) (xiii) and (xiv) were not related to the Claimant’s race, age or sex. It was entirely unclear how not having a note taker at a meeting could be related to the Claimant’s protected characteristics. The remaining allegations about managing the Claimant have already been discussed but in summary I have been provided with no evidence that the decision to performance manage the Claimant was made for any reason related to the Claimant’s race, age or sex.[163]Mr Twinberrow did not have authority to transfer the Claimant so any failures in that regard were not Mr Twinberrow’s – though I have reached conclusions regarding the overall basis for that decision above in any event.[164]Finally, I find that the factual premise for the Claimant’s claims based on micromanagement are not made out. I accept that Mr Twinberrow managed the Claimant but not that he micromanaged him. As and when the Claimant made decisions at work that managers disagreed with he was challenged. When he then reacted badly to the challenges, he was told that his behaviour was unacceptable and offered support through the performance management process and attempts to refer him to Occupational Health. I do not accept that this amounts to micromanagement and further the Claimant has provided no links to his characteristics that could lead me to conclude that it amounted to harassment.[165]I do not uphold the Claimant’s claims for harassment related to sex, age or race. Unfair Dismissal Procedural fairness[166]The Claimant appears to have suggested that his dismissal was procedurally unfair for various reasons.[167]Firstly he points to the dates upon which he was suspended in contrast to the date on which he got the terms of reference for the investigation. I find that no unfairness was effected by this gap. There was no contractual right to receive the terms of reference on the day of suspension and the Claimant has not articulated its impact on his ability to partake in the process. Importantly the Claimant had the terms of reference before he was interviewed by the investigating officer and so he knew what he was being interviewed about and had time to prepare accordingly.[168]Secondly he points to the fact that he was not sent the disciplinary policy. I accept that he had to ask for the policy because it had previously only been made available to him on the intranet. I accept that it would have been better practice for the document to have been sent to him as an attachment. However, the Claimant was aware that it existed, he did not ask for a copy, he was represented throughout by his union representative who could have given him a copy at any time and was no doubt explaining the process to him and he was sent the policy before his disciplinary meeting even if not before his investigation meeting. The Claimant has also not indicated to me how the Respondent has subsequently deviated or breached the policy itself nor has he outlined how him not knowing what was in the policy led to any substantive unfairness to him.[169]The Claimant asserted during the appeals process that the disciplinary report by Mr Kyle was produced outside the 28 day period set out in the policy. I accept that the process took over 2 months and delay can often be incredibly difficult to bear when suspended without any contact with your colleagues. Nevertheless, on balance, although there was a delay it was not so unreasonable as to fall outside the range of reasonable processes for an employer in all the circumstances. I do not conclude that the delay of just over a month from their normal policy, was so unreasonable as to render the entire process unfair when taking into account the depth of the investigation and the number of people interviewed.[170]The Claimant asserted that having the disciplinary hearing across two days was unfair and unreasonable. I disagree, the two day hearing was held to ensure that the correct witnesses could attend and he could question those witnesses.[171]Overall, I consider that any procedural flaws were minor and are not sufficient to say that the process was so unfair as to fall outside the range of reasonable procedures.[172]The investigations into the Claimant’s behaviour both in respect of that which led to his final written warning from Ms Frost and the dismissal, were thorough and reasonable. The Claimant has not asserted that certain people were not interviewed or that certain steps were not taken. His concerns regard the delay to the reports which I have addressed above.[173]The Claimant has asserted that he was treated differently from others. This extends to the failure to investigate his grievance, or suspend the disciplinary process whilst his grievance was investigated and/or that his grievance was not properly factored into the decision making by Ms Frost, or that his concerns were not properly taken into account and/or that other individuals were not suspended when he raised concerns about them.[174]I accept that the Claimant has demonstrated that in altercations where other members of staff were found to have behaved badly, those other members of staff do not seem to have been investigated. I also consider that the Claimant’s serious allegations against Ms Gibson and Ms White were not investigated and that has not been explained by the Respondent’s witnesses. I accept that the Claimant has demonstrated that other members of staff have not been investigated in the same way that he has. However, I was provided with evidence that Ms Gibson had committed a separate act of misconduct that resulted in her receiving a 2 year final written warning by Ms Frost. This was due to a separate unrelated matter but it appears that other staff are disciplined in similar ways even if not on the occasions the Claimant has established such as with Mr Herbert.[175]However, I accept Ms Frost’s evidence that she was aware of the grievance against Ms Jackson and the issues raised within it even though there was no formal investigation or outcome.[176]With regard to the substantive fairness of the decision. I find that Ms Frost had due regard to the following:(i) Whether there was an alternative to dismissal including transferring the Claimant to another prison(ii) Whether the behaviour was sufficiently serious to justify dismissal(iii) The evidence before her in respect of the Claimant’s conduct(iv) The Claimant’s own apology for his behaviour(v) The Claimant’s domestic and personal circumstances[177]The Claimant asserts that he could have been given more support and training – for example anger management training. I find that he was offered a route to that support but he failed to engage with Occupational Health and so that was not made available to him. The Claimant does not say what training he ought to have received. He was a fully trained officer. The complaints were not about his work with prisoners; the complaints were about his attitude towards his colleagues when they challenged him. He has not explained that behaviour during this hearing nor has he denied it.[178]I consider that although she accepted that the Claimant had not committed an act of gross misconduct on this occasion, Ms Frost’s decision to dismiss fell withing the range of reasonable responses for an employer in all the circumstances because:(i) The investigation report was thorough and reasonable(ii) She believed other witnesses’ account of the incidents over the Claimant’s and that was a reasonable conclusion given that their evidence was tested in front of her by the Claimant’s representative(iii) She clearly did listen to the Claimant’s version of events because she decided that the incident on 12 July warranted no action(iv) The Claimant accepted the majority of his behaviours towards colleagues and had promised at the conclusion of the last disciplinary process that he would not repeat this behaviour(v) The Claimant had a two year final written warning on file for almost exactly the same behaviour and only five months had passed since that warning was issued(vi) The Claimant had previously had a final written performance warning on his file because of very similar behaviour(vii) The claimant had not properly sought anger management support via Occupational Health despite being offered it(viii) The Claimant had not been able to stop behaving in this way despite apologies, recognition that he needed to behave differently at earlier stages, and a wing transfer.[179]The Claimant says that they ought to have considered transferring him to another prison as an alternative to dismissal. It is not clear on what basis this would have been possible. In any event, I accept that Ms Frost did consider reasonable alternatives to dismissal but decided that, on balance, for all the reasons outlined above, dismissal was the right course of action. It is not for me to substitute my opinion for hers.[180]The Respondent has established that the reason for dismissal was the Claimant’s conduct. This is a potentially fair reason for dismissal. I accept that this decision fell within the range of reasonable responses for an employer in all the circumstances including the size and resources of the employer and in accordance with equity and the substantial merits of the case.[181]I do not uphold the Claimant’s claim for unfair dismissal.