F Kamara v ISS Mediclean Ltd T/a ISS Facility Services Healthcare: 2221249/2024 F Kamara v ISS Mediclean Ltd T/a ISS Facility Services Healthcare: 2221249/2024
EMPLOYMENT TRIBUNALS
Case No 2221249/2024
Between
Fatmata KamaraClaimantISS Mediclean Ltd T/A ISS Facility Services HealthcareRespondent
Before
Employment Judge WattonKevin Coyle for claimantSapandeep Maini-Thompson (instructed by Counsel) for respondentDate 28 April 2025
JUDGMENT
[1]The claim for unfair dismissal is not well-founded and is dismissed.[2]The claim for breach of contract in relation to notice pay is not well-founded and is dismissed.[3]The claim for holiday pay is not well-founded and dismissed, the parties having agreed that the Respondent had paid the Claimant the holiday pay owed in July 2024. The parties filed the relevant payslip in the Tribunal bundle.
REASONS
[4]The Claimant was employed by the Respondent as a Domestic Assistant. She was summarily dismissed for gross misconduct by the Respondent on 5 February 2024.[5]The alleged gross misconduct occurred on 14 December 2023. The allegations can be summarised as follows:• A student physiotherapist exited a toilet in an area the Claimant was cleaning. The Claimant accused the student of not flushing the toilet because there was blood there.• The student said that she had flushed the toilet but perhaps the flush was weak.• The Claimant continued to accuse the student, raising her voice and attracting attention. The student went back to the toilet and flushed it twice.• The Claimant continued shouting, telling the student that she is not just a cleaner and the student needed to respect her.• The student made a ‘shh’ sound and/or gesture at the Claimant to indicate she should lower her voice.• The Claimant followed the student into the physiotherapy office and described the incident to others in the room.• The student had to be sent home as she was distressed.[6]An investigation meeting was conducted by Freddy Mumbonga, Senior Services Manager, on 18 January 2024. The Claimant attended that meeting and said she did not remember the incident, though she apologised if she had raised her voice or said anything to anyone.[7]On 23 January 2024 Mr Mumbonga concluded that there was a case to answer. On 30 January 2024 an Operations Manager, Joan Carter, held a disciplinary meeting with the Claimant, who was accompanied by a Trade Union representative. At first the Claimant said she could not remember anything and did not know anything, but then did deny the incident. On 5 February 2024 the Claimant was summarily dismissed for gross misconduct.[8]The Claimant appealed the dismissal. The appeal officer was Nelson Nunes and he conducted a hearing on 6 March 2024. The Claimant was again accompanied by a Trade Union representative. She denied the incident. On 20 March 2024, Mr Nunes upheld the dismissal.[9]The Claimant says that the dismissal was unfair. She also says that she should not have been dismissed without notice because she was not guilty of gross misconduct, and so was entitled to be paid notice pay.[10]The Respondent says that it reasonably concluded that the Claimant was guilty of gross misconduct and followed a fair procedure in dismissing her. It also says that because of the alleged gross misconduct the Claimant is not entitled to notice pay.[11]There was also a claim for holiday pay. It was agreed by the Claimant at the hearing that since the issue of proceedings the Respondent had paid the outstanding holiday pay. The relevant payslip is at page 320 in the main bundle and shows holiday pay of £321.41 net (£419.40 gross) had been paid to the Claimant.[12]Acas early conciliation commenced on 25 March 2024 and the certificate was issued on 6 May 2024. The ET1 was filed in time, on 3 June 2024.[13]The hearing was heard in person on 22 and 23 April 2025. I reserved judgment. The hearing: Preliminary applications Application to amend[14]On 10 April 2024 Mr Coyle filed an application to amend the claim to include the following matters:• That the sole or principal reason for dismissal was the making of a protected disclosure, contrary to section 103A of the Employment Rights Act 1996 (“the 1996 Act”).• Victimisation, contrary to sections 27 and 39 of the Equality Act 2010.• The addition of two of the Respondent’s staff members as respondents.[15]The Tribunal wrote to the parties on 17 April 2025 on the instruction of EJ Adkin. The letter asked the Respondent to confirm its response to the application and explained to the Claimant that if permission to amend was granted then the hearing may need to be postponed and relisted.[16]At the hearing Mr Maini-Thompson stated the Respondent opposed any application to amend, and if it was granted the Respondent would need more time to prepare its response. I agreed that it would be unfair to expect the Respondent to address those new claims at the listed hearing. I explained to Mr Coyle that if I did grant the application the hearing would indeed need to be adjourned. He said the Claimant was concerned about delaying the hearing any further as she had been waiting long enough for the final hearing. After discussing the matter with the Claimant Mr Coyle decided to withdraw the application to amend. Application for a witness order[17]Mr Coyle then made an application for a witness order in respect of Karen Bedborough, who works as a People & Culture (Human Resources) Business Partnering Advisor for the Respondent. The Claimant’s case is in part that Ms Bedborough inappropriately influenced the decision-making by the disciplinary officer, Joan Carter, and appeal officer, Nelson Nunes.[18]On 10 April Mr Coyle emailed the Tribunal to say that a witness order application had been sent to the Tribunal the previous day. On 15 April he said the Tribunal seemed to have missed the application for a witness order. I can find no written record of the application in the Tribunal file. In any event, I am satisfied Mr Coyle had adequate opportunity to address me on the application at the hearing.[19]It is not necessary to hear from the Respondent when considering an application for a witness order. In this case, where the application was made on the day of the hearing in the presence of the Respondent I considered it in the interests of justice to do so. Mr Maini-Thompson opposed the application at this late stage and stated that Ms Bedborough was on maternity leave. The Respondent had also sent in a MATB1 form as evidence of this on 13 March.[20]I refused the application, applying Dada v Metal Box Co Ltd 1974 ICR 559. I do agree with Mr Coyle that Ms Bedborough’s evidence could be relevant to the Claimant’s case. However, I was not satisfied it was necessary to make the order. It was not alleged there were any documents in Ms Bedborough’s sole possession which could only be produced by her. Moreover, she was unavailable and likely to be so for several months. Both Ms Carter and Mr Nunes were present and available for cross-examination by Mr Coyle. The emails and documents written by Ms Bedborough were in the bundle, including documents with tracked changes showing her contemporaneous amendments to them. It is difficult to see what further oral evidence she could give.[21]The Respondent’s case is not that Ms Bedborough was not involved in the disciplinary process, it is that the involvement she did have did not make the dismissal unfair. I concluded a witness order was not necessary, nor in accordance with the overriding objective. I had sufficient information available to me to fairly determine the claim without compelling Ms Bedborough’s attendance, particularly when she is on maternity leave with a 3 month old baby. Application to unredact documents[22]The Claimant had made an application to unredact documents, which were four emails within chains of other emails in the supplementary bundle. In the interests of time Mr Maini-Thompson showed me and Mr Coyle the emails. The emails were inconsequential, several of them simply read “FYI”. I need say no more about them. Application to exclude witnesses and observers from the hearing[23]There were four people in the public gallery at this stage of the hearing, all sitting on the side of the room behind Mr Maini-Thompson and his instructing solicitor. Two were Joan Carter and Nelson Nunes, who were the Respondent’s witnesses. The observers were other staff members from the Respondent.[24]Mr Coyle made an application to exclude the two witnesses and two observers from the hearing. He argued that having four members of staff from the Respondent was intimidating and could be a form of legal bullying. He submitted that permitting their presence could violate the Claimant’s rights under Article 6 of the European Convention on Human Rights. He opined that as someone who had never been involved in Tribunal proceedings before the Claimant would not be able to speak freely in the presence of observers and witnesses and would not fairly be able to give her evidence. Mr Coyle questioned whether the Respondent was paying the observers and witnesses double for their attendance.[25]Mr Maini-Thompson resisted the application, which he said he had not been informed of in advance. He relied on the open justice principle. He also submitted there were no issues of witness vulnerability and there was no issue in relation to Article 6 ECHR.[26]In reply Mr Coyle reiterated the Tribunal must be seen to be fair, impartial and unbiased. He asked what the ordinary man on the street would think to see the Respondent had two lawyers and four observers.[27]I refused the application to exclude the observers and the application to exclude the witnesses. Compelling reasons are needed to deviate from the open justice principle. That principle is what allows Mr Coyle’s hypothetical ordinary man in the street to see what happens in tribunals and form opinions of their workings. There were no compelling reasons to deviate from the principle in this case.[28]Similarly, there was nothing that interfered with the Claimant’s right to a fair and public hearing under Article 6 ECHR. The fact more observers attend for one party than another cannot seriously be said to create a risk of actual or perceived bias. Judges do not decide cases based on who is in the public gallery.[29]In this case the witnesses and observers had behaved properly throughout the morning. There was no evidence of the Claimant being vulnerable and she was represented by Mr Coyle, an experienced trade union professional.[30]The position of the witnesses is different. Rule 43 of the procedure rules allows me to exclude witnesses until they give evidence if it is in the interests of justice to do so. I was not satisfied it was necessary to do so here. The witnesses undertook separate stages of the disciplinary process. Detailed witness statements had been provided by each of them. They were not giving evidence about the same facts so there was no issue of them contaminating each other’s evidence.[31]I said I would revise the ruling if there was any attempt by any observer or witness to intimidate the Claimant or otherwise disrupt the hearing. I also reminded Mr Coyle that the Claimant was able to bring along her own observers if she wished to.[32]Over the two-day hearing I did not see or hear any inappropriate behaviour by any observer or witness, nor was any such behaviour reported to me by either representative.
Legal framework
[33]Section 94 of the 1996 Act says that employees have the right not to be unfairly dismissed. It is agreed by the parties that the Claimant had been employed by the Respondent for more than two years on the effective date of termination (5 February 2024). The fact that the Claimant was dismissed by the Respondent is also agreed, the Claimant has established she was dismissed by the Respondent for the purposes of section 95 of the 1996 Act.[34]Section 98 of the 1996 Act deals with the fairness of dismissals in two stages. The first stage is that an employer must show what the reason was and that it was a potentially fair reason. The employer is required to prove this on the balance of probabilities. The Respondent in this case says that the reason was conduct, which is a potentially fair reason under section 98(2).[35]In Royal Mail Group Ltd v Jhuti [2019] UKSC 55 the Supreme Court considered the situation where an employer determines an employee must be dismissed for a reason, but that reason A is hidden behind an invented reason B. It held that it is the Tribunal’s duty to “penetrate through the invention rather than to allow it also to infect its determination.”[36]The second stage of section 98 is that the Tribunal must consider whether the respondent acted fairly or unfairly in dismissing for that reason. Section 98(4) states that fairness (or unfairness) depends on whether in the circumstances the Respondent acted unreasonably in treating the conduct as a sufficient reason for dismissing the Claimant. I must also have regard to the size and administrative resources of the company. Section 98(4) also requires that fairness be determined in accordance with equity and the substantial merits of the case.[37]It is immaterial how I would have handled the events or what decision I would have made. The Tribunal must not substitute its own view for the view of the reasonable employer: Iceland Frozen Foods Limited v Jones 1982 IRLR 439.[38]When determining fairness I must apply British Home Stores v Burchell 1980 ICR 303 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, and consider:• Whether the Respondent genuinely believed the Claimant was guilty of misconduct.• Whether that belief was based on reasonable grounds.• Whether a fair investigation took place.• Whether the Respondent acted in a procedurally fair manner.• Whether it was within the band of reasonable responses to dismiss the Claimant.[39]I must have regard to the ACAS Code of Practice and take account of the whole process, including any appeal: Taylor v OCS Group Ltd [2006] IRLR 613.[40]Where, as in this case, the dismissal is for gross misconduct I must be satisfied that the Respondent acted reasonably both in characterising the alleged conduct as gross misconduct and also in determining that dismissal was the appropriate punishment: Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854.[41]In relation to the notice pay, I must decide for myself whether the Claimant was guilty of conduct serious enough to entitle the Respondent to terminate the employment without notice.
The issues
[42]It is accepted by all parties that the Respondent dismissed the Claimant. Having regard to the legal framework set out above, the issues I need to resolve are:• What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. I must decide whether the Respondent genuinely believed the Claimant had committed misconduct.• If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? I must decide whether: i. there were reasonable grounds for that belief; ii. at the time the belief was formed the Respondent had carried out a reasonable investigation; iii. the Respondent otherwise acted in a procedurally fair manner; iv. dismissal was within the range of reasonable responses.[43]The claim for notice pay is founded on many of the same facts as the unfair dismissal claim. However, to determine that claim I must decide for myself whether the Claimant was guilty of conduct so serious that the Respondent was entitled to dismiss without notice.
Evidence
[44]The parties provided a main bundle (332 pages), a supplementary bundle (112 pages), a bundle of the Respondent’s witnesses’ statements and the Claimant’s witness statement. The representatives helpfully agreed an essential reading list which was sent to me on 23 April. I have read all the papers, but I read those on the list particularly closely.[45]On 24 April, after the hearing, Mr Coyle sent an email (copied to the Respondent’s representative) saying the reading list was disputed and attaching additional documents I should read. Not all the entries on the reading list are phrased neutrally, for example one document is described as “KC witchhunt and phone calls between JC and KB”. These amount to submissions made after the hearing. No application to make further submissions was made. I do not consider it accordance with the overriding objective to admit the text in the revised reading list itself. However, to ensure I have fairly taken account of all documents the Claimant says support her case I have re-read the documents at the page numbers cited in Mr Coyle’s list.[46]Before hearing witness evidence I explained that any facts either party wished to rely on in submissions needed to be put to the witnesses (unless they were agreed between the parties). The Claimant gave evidence. Her witness statement was her evidence in chief, and she was cross-examined by Mr MainiThompson. For the Respondent, Joan Carter and Nelson Nunes gave evidence. Their witness statements were their evidence in chief and they were cross-examined by Mr Coyle. Mr Nunes’ evidence was heard before Ms Carter’s but I will address his last because it relates to the more recent part of the disciplinary process.[47]The Claimant[48]The Claimant’s witness statement was dated two days before the hearing. More than half of the Claimant’s witness statement covered events before the alleged misconduct. She did present her account of the events of 14 December 2023. She accepted that she had asked the student to flush the toilet, but she said the ‘shh’ motion had happened before she went to the therapies office. She said she had previously said she did not remember because the student apologised to her, so she did not consider it a major issue.[49]The Claimant said she felt there was a bullying culture at the Trust and ISS and that Joan Carter was trying to get rid of her.[50]Mr Maini-Thompson put it to the Claimant that she knew that Lucy Dean had said she was angry and confrontational and that the reason she had claimed not to remember before was that she was lying. The Claimant denied that she was lying. Joan Carter[51]Ms Carter is an Operations Manager for the Respondent, based at a client site (the Royal Marsden Hospital since 2019), though she has worked in the organisation for around 15 years. She oversees healthcare cleaning, linen, waste and pest control. It was her unchallenged evidence that she has dyslexia and that this can affect her longer-term memory and that she can sometimes struggle to process information.[52]Ms Carter was the Claimant’s manager from 2019 until 2024. She conducted the disciplinary process and made the decision to dismiss the Claimant for gross misconduct. She said she made that decision herself, though it is the Claimant’s case that she was improperly influenced or led to the decision. Ms Carter agreed that she sent the draft letter to Ms Bedborough for checking. She said she had mistakenly thought it was a ‘contractual’ dismissal at first and had prepared her draft dismissal letter on that basis. After speaking to Ms Bedborough she realised she should use the summary dismissal letter, as the misconduct was gross misconduct.[53]In her witness statement Ms Carter addressed her the Claimant’s disciplinary history at length. As the Claimant’s line manager Ms Carter had had some involvement with many of the alleged or actual incidents but was only formally part of the procedure on two occasions. In 2019 she investigated an issue relating to the Claimant’s performance and concluded there was a case to answer, though she had no subsequent involvement in the process.[54]The only prior time Ms Carter had been the disciplinary officer was in 2023 in relation to an incident of unauthorised absence. Ms Carter said she was under the mistaken impression that the Claimant was under a final written warning at the time, so when Ms Carter decided to dismiss the Claimant for unauthorised absence in 2023 she did so under a mistaken belief. She then telephoned the Claimant around 10 minutes later to correct this and changed the outcome to a final written warning. This part of Ms Carter’s evidence was not challenged in cross-examination, though Mr Coyle did put it to Ms Carter that she did not ‘have a clue’, which she disagreed with.[55]In cross-examination Ms Carter said she viewed the first stage of the disciplinary process (which she undertook) as distinct from the appeal (which Mr Nunes undertook) because the appeal manager can overturn the initial decision. She said she did not know why an email from Lucy Dean on 28 December 2023 was not before Mr Nunes when he conducted his appeal.[56]Mr Coyle put it to Ms Carter that including parts O and P of the disciplinary policy/rules of conduct within the letter of 5 February 2024 made the allegations put to the Claimant inaccurate. Ms Carter responded that the allegations fell within those categories and so they needed to be in the letter.[57]Ms Carter denied she had targeted the Claimant or that she had committed a series of hostile acts over a period of time. She denied she had abused her power and said if she felt she had been biased she would have said she was not the right person to conduct the disciplinary. She said that she had found the misconduct proved, and that it was gross misconduct by herself. She had got confused between contractual and summary dismissals.[58]I prevented Mr Coyle from asking some of his questions because they related to whistleblowing or victimisation. He had withdrawn the application to include those claims so there was no need to hear evidence on them. Questions to a witness must be relevant to the issues in the case. I did permit Mr Coyle to put questions about Ms Carter’s competence and independence, with reference to some of the documents from the earlier investigations. Those matters can potentially be relevant to the issues in the case. I also asked him to break down his questions into shorter sections to assist Ms Carter because of her dyslexia. Nelson Nunes[59]Mr Nunes was the appeal officer and gave unchallenged evidence that he did not know Ms Carter or the Claimant before the appeal.[60]Mr Coyle cross-examined Mr Nunes about whether he had made his decision independently, or whether he was simply doing what Ms Bedborough and/or Ms Carter had told him to. Mr Nunes’ evidence was that he made his decision independently.[61]Mr Coyle cross-examined Mr Nunes on an email of 28 December 2023 from Lucy Dean to Joan Carter. In that email Ms Dean refers to the matter as an ‘isolated incident’. Mr Nunes admitted that the email was not before him when he considered the appeal, but did not think it would have made a difference. My findings: unfair dismissal What was the reason or principal reason for dismissal? Did the Respondent genuinely believe the Claimant had committed misconduct?[62]It is convenient to address these two considerations together. The Respondent says it genuinely believed the Claimant had committed gross misconduct. In accordance with Jhuti I have considered whether there was some other reason behind the dismissal, such as personal hostility towards the Claimant. I find that there was not. The documentary evidence simply does not establish this at all, even on the lower standard. Ms Carter was cross-examined on the reason for dismissal and I found her answers on this point to be credible. She rejected the assertion that there was a personality clash between her and the Claimant, and in her witness statement notes that this had not been raised before the dismissal outcome was issued.[63]Mr Nunes’ evidence regarding the reason for dismissal being conduct was not challenged, and I do not consider that any of the other documents undermine the credibility of his evidence.[64]Both Ms Carter and Mr Nunes had documents to support the allegation of misconduct before them when they made their decisions. These included three documents the parties have referred to as witness statements. These documents were written by the student involved in the incident; Regine Huang, an occupational therapist; and Lucy Dean, a senior physiotherapist. I do take into account the statements are unsigned and do not bear statements of truth.[65]The three statements set out the alleged incident in question and are broadly consistent with each other. There are some limitations with them, in particular the student’s statement which includes conjecture about the Claimant’s alleged behaviour having “racial intent”. However, Ms Carter and Mr Nunes did not take this aspect of the allegation further and proceeded based on the core factual allegations. They clearly did not genuinely believe the “racial intent” allegations, but did genuinely believe the Claimant had committed gross misconduct.[66]The problem for the Claimant’s case is that she did not deny the allegations until a very late stage, and when she did she did not put forward her own version of events. With so little information from the Claimant I find that the Respondent genuinely believed the Claimant had committed gross misconduct.[67]I find that the reason for dismissal was conduct and the Respondent genuinely believed the Claimant had committed gross misconduct. Did the Respondent act reasonably in all the circumstances in treating the misconduct as a sufficient reason to dismiss the Claimant?[68]I find that the Respondent acted reasonably in all the circumstances in treating the misconduct as a sufficient reason to dismiss the Claimant. The Respondent had reasonable grounds for its belief and had conducted a reasonable investigation at the time the belief was formed. It acted in a procedurally fair manner and dismissal was within the range of reasonable responses. Reasonable grounds for the belief[69]I find that the Respondent had reasonable grounds for its belief in the Claimant having committed gross misconduct. The Claimant did not put forward any details of her own account at the investigation or disciplinary stage and put forward very few details at the appeal stage. She was represented by Trade Union officials at both the disciplinary and appeal stage. On the other hand, the Respondent had three statements from physiotherapy and occupational health staff setting out what went on. Joan Carter gave the Claimant many opportunities to set out her own case in interview, and the Claimant did not take that opportunity. There was therefore no evidence to contradict the Respondent’s belief.[70]I am also satisfied per Brito-Babapulle that it was reasonable for the Respondent to find that the alleged misconduct amounted to gross misconduct. It was reasonable to conclude the conduct breached paragraphs O and P of the Respondent’s Rules of Conduct, breaches of which were clearly stated to be gross misconduct. Those paragraphs state that employees must not engage in insulting behaviour, and must not engage in any behaviour such as intimidation, harassment, victimisation or bullying likely to cause distress or anxiety to any other person. The alleged gross misconduct satisfied this definition and there was very little mitigation. The Claimant had worked at the organisation for many years but she was already on a final written warning. Reasonable investigation at the time the belief was formed[71]I find that the Respondent carried out a reasonable investigation. The allegations were put to the Claimant and she was given several reasonable opportunities to respond and put forward her own case. The difficulty in this case is that the Claimant put forward a very limited case in reply. There was very little the Respondent could go on to investigate further, other than the accounts of those who were there. When the Claimant did develop her account slightly and made mention of CCTV Mr Nunes said he knew that there was unlikely to be CCTV in a clinical area but checked anyway. Acting in a procedurally fair manner[72]Mr Coyle made many points concerning procedural fairness. He likened Ms Kamara’s treatment to the treatment of subpostmasters by the Post Office. He made disparaging remarks about HR professionals. He made generalised submissions about the Respondent’s treatment of its workers.[73]I asked Mr Coyle to take me to the evidence for his submissions on several occasions. I asked him to refer me to any evidence in the bundle. Instead, Mr Coyle said I should look at other Tribunal cases involving the Respondent. It was inappropriate to do so at this stage in the proceedings, with no notice to the Respondent and I refused to hear those submissions. In any event, it is unlikely they could have been relevant to the issues in this claim. I must decide the case on my own view of the witness evidence and the documentary evidence filed, not what Mr Coyle thinks about ISS. I am not bound by other decisions of this Tribunal. Each case must be decided on its own facts.[74]I accept Mr Coyle’s submission that there is an inherent imbalance of power in an employment relationship. That does not mean a claimant’s representative can expect the Tribunal to accept submissions that are unsupported by the evidence in the case.[75]In this case I agree with Mr Maini-Thompson that the Respondent acted in a procedurally fair manner. I will address Mr Coyle’s main submissions below. Joan Carter not present at appeal hearing and did not otherwise give evidence[76]One of the issues Mr Coyle raised was that Ms Carter did not give evidence at the appeal hearing. He submitted that I should draw adverse inferences from her failure to attend the disciplinary hearing to present her case. He argued that the dismissing officer should be present at the appeal to present their statement of case. He said that it is a fundamental breach of natural justice if an individual is not allowed to cross-examine their accuser.[77]I was not taken to any authority to support this proposition. Having read the Respondent’s disciplinary policy, a failure to call Ms Carter does not breach that policy nor is it a breach of the Acas Code of Practice. Both the Respondent’s policy and the Acas Code of Practice simply require the investigating officer to be impartial. They also require the manager have had no prior involvement in the case. I find that those requirements were satisfied in this case, it was not challenged that Mr Nunes was not involved with Ms Carter or the Claimant before and worked at a different site.[78]I find that a failure to interview or otherwise hear from Joan Carter as part of the appeal process was not procedurally unfair. The Claimant and her Union representative (not Mr Coyle) did not raise this at the appeal hearing. Mr Nunes did have a copy of Ms Carter’s letter of 5 February 2024 which explained her reasons for dismissing the Claimant. It was Mr Nunes’ task to look at the appeal afresh and judge the situation for himself. I find that he did so. Intimidating correspondence[79]In the letter of 5 February 2024 to the Claimant informing her she was dismissed there is a paragraph that reads: “The hearing was convened under the Company’s Disciplinary Procedure to consider: The alleged breach/s of the following procedures/policies/rules of conduct:• O) Employees must not engage in insubordinate, insulting or violent behaviour.• P) Employees must not engage in any behaviour such as intimidation, harassment, victimisation or bullying likely to cause distress or anxiety to any other person.”[80]Mr Coyle suggests that the inclusion of this paragraph was in some way intimidating to the Claimant and this meant she did not present her best case at the appeal stage. However, there is no evidence of the Claimant being intimidated. Even she does not say so. She did not say so in the disciplinary proceedings. In the proceedings before the Tribunal the Claimant did not say she was intimidated by the letter in her witness statement and did not say so under cross-examination. In fact, she originally denied receiving the letter when Mr Maini-Thompson asked her whether it was posted to her home. As Mr MainiThompson put to her, she must have received the letter because she appealed the decision.[81]Even if the Claimant had said she was intimidated I would not have accepted this as procedural unfairness. The Claimant availed herself of union representation. The Claimant was entitled to know what she was alleged to have done. The paragraph in question is simply quoting which of the alleged rules of conduct the Claimant was said to have breached. It is a basic principle of procedural fairness that she be told this. Independence of Joan Carter[82]Mr Coyle says that Joan Carter was not independent and was driving the process to get rid of the Claimant. He says that her motivation was personal hostility to the Claimant. Mr Coyle also submits that Joan Carter was inappropriately influenced by Karen Bedborough in making her decision (which is addressed below). As Mr Maini-Thompson submitted, it is difficult to see how both things can be true.[83]I find that there was no procedural fairness by having Joan Carter as the disciplinary officer. First, she was sufficiently independent of the investigating officer, Freddy Mumbonga. Second, after hearing her evidence I find that she was not motivated by any personal animosity to the Claimant. Indeed, on a previous occasion in 2023 Ms Carter had made a mistake in the disciplinary process where she had thought the Claimant was on a final written warning. Ms Carter realised her error, and corrected it within 10 minutes. She apologised to the Claimant. These are not the actions of someone seeking to get rid of the Claimant at any cost.[84]In the disciplinary hearing Ms Carter put the allegations to the Claimant several times in different ways because the Claimant claimed she did not remember the incident. If Ms Carter was biased she could have stopped after the Claimant had been asked once. I do not accept that Ms Carter was biased so that she could not act as disciplinary officer. Involvement of Karen Bedborough[85]Mr Coyle submitted that the investigation was not independent or otherwise unfair because the decision to dismiss and the decision to uphold that decision on appeal were not really taken by Ms Carter or Mr Nunes, they were taken or at least improperly influenced by Ms Bedborough. Ms Carter and Mr Nunes denied this in cross-examination.[86]Ms Carter was frank that she needed help from Ms Bedborough to correct her English. However, her first draft of the dismissal letter (dated 2 February 2024) was originally headed ‘Disciplinary Outcome – Contractual Dismissal’ and the final letter that went out on 5 February 2024 stated ‘Summary Dismissal’.[87]Ms Carter’s email at 9:52am on 5 February 2025 states that ”because it falls within gross misconduct I thought it was two weeks, if that is not the case then it is 12 weeks’ notice.” The 2 February letter did say that the conduct was gross misconduct. It set out the relevant principles of the disciplinary policy.[88]I have considered the involvement of Ms Bedborough in Joan Carter’s decisionmaking. It is clear from the emails and call logs between Ms Bedborough and Ms Carter on 5 February 2024 that they had a phone conversation and afterwards Ms Carter sent Ms Bedborough the draft letter. After that conversation Ms Bedborough emailed to say “as discussed if you could please update it to summary dismissal”. Ms Carter said she could not remember it but she did remember she got confused between summary and contractual dismissal. In cross-examination she stated that she thought summary dismissals entitled the Claimant to two weeks’ notice pay. She also said she sometimes had difficulty taking in information. This was not challenged. She also said that that she made the decision herself. I find her evidence on this point credible and I find that there was no improper involvement by Ms Bedborough.[89]It was not challenged that Ms Carter has dyslexia and has difficulty taking in information. In those circumstances I do not find it to be significant that she was confused between summary and contractual dismissal letter templates. In the draft on 2 February 2024, it was clear that her decision was that the Claimant had committed gross misconduct and should be dismissed as a result. I therefore find that there was no improper influence by Ms Bedborough. Ms Carter took the decision herself.[90]In respect of whether Mr Nunes made his decision independently, he says he did. There is a copy of the draft appeal outcome letter in the file, with Ms Bedborough’s changes recorded through the ‘tracked changes’ function. Mr Nunes was not specifically cross-examined on this letter and I found his evidence that he made his decision independently credible.[91]Mr Maini-Thompson argued that the amendments to the letter did not affect the substantive or procedural fairness of the decision-making. Some of the changes are inconsequential grammar and formatting changes. Others are more substantial. However, looking at their content I am satisfied that they do not show any improper influence on the decision by Ms Bedborough. Even without the tracked change amendments it is clear that Mr Nunes’ decision was to dismiss the appeal. The changes Ms Bedborough did make amount to reiterating that the Claimant raised points in the appeal that were not backed up by evidence or had not been raised at the investigation and disciplinary stage. I therefore find there was no improper influence on Mr Nelson’s decision to uphold the dismissal.[92]Mr Coyle spent some time in cross-examination asking Mr Nunes about the email signatures on Ms Bedborough’s emails and whether she was in the same place as Mr Nunes. Mr Nunes said Ms Bedborough worked from a variety of client sites. Even taking the Claimant’s case at its highest, it is not unusual or improper for an HR advisor to be at the same location as other members of staff. I do not consider this shows any unfairness, or is evidence of any improper collusion. Documents not before appeal officer[93]In cross-examining Mr Nunes Mr Coyle established that an email from Lucy Dean dated 28 December 2023 was not before Mr Nunes when he considered the appeal. This email included the phrase “I feel that overall the therapists have a good relationship with the ISS member of staff, and this appears to have been an isolated incident.” Mr Coyle says that it was procedurally unfair not to have this email before Mr Nunes when he made his decision, as it could have been important mitigation.[94]I do agree with Mr Coyle that a failure to give the appeal officer certain documents could have been procedurally unfair. However, in the context of this email I do not find that it was. Mr Nunes knew that the allegation was a one-off incident, as his appeal decision refers to an “event” in the singular. He did have Lucy Dean’s statement before him, which read “I would like to say that the rehabilitation team, as far as I am aware, have a good relationship with ISS staff member. This was unexpected and out of character but also unacceptable.” It is difficult to see what the email could have added when the statement he did have develops the mitigating circumstances further. Breaches of Acas Code of Practice[95]This submission was not particularised. I cannot identify any breaches of the code for myself. The disciplinary process followed the Acas Code of Practice in that there was an investigation before the disciplinary hearing and Mr Nunes was an independent appeal officer. Dismissal within reasonable range of responses[96]I remind myself that I am not to substitute my own view of the Claimant’s conduct in deciding what is within the band of reasonable responses.[97]I consider the nature of the misconduct itself. The misconduct the Respondent had found proved was not simply that the Claimant had spoken to the student physiotherapist when she exited the toilet. The Claimant did not drop the situation and speak to a manager about it. She followed the student down the corridor and publicly admonished her. The student was embarrassed, as many women and girls would be if having their menstrual blood publicly discussed.[98]The situation could likely fall within intimidating or bullying behaviour likely to cause distress to any other person, per paragraph P of the Respondent’s rules of conduct. In the policy that text is in bold, which the policy states indicates that it will be regarded as gross misconduct.[99]Mr Coyle asked me to consider that the Claimant was provoked by the ‘shh’ words and/or gesture used by the student. The Claimant did not say that until the day before the hearing when her witness statement was served. The Respondent could not have taken that into account because the Claimant never told the Respondent that was how she felt. The Respondent only had what the three therapies staff had said, which was that the ‘shh’ occurred after the Claimant had already followed the student down the corridor and publicly criticised her.[100]Very little mitigation was put forward by the Claimant, because she at first said she did not remember the incident and then gave little more than a bare denial. As Ms Carter put it in her evidence, the Claimant gave her very little to go on.[101]I consider the nature of the Claimant’s role. Cleaning in a hospital setting is an important job. It contributes to the safety and wellbeing of patients, staff and visitors. I have no doubt it can be unpleasant at times and I must take that into account when deciding what is within the band of reasonable responses. However, the Claimant had many years of experience in this role. It cannot have been the first time she had had to clean an unclean toilet. There were other options open to the Claimant to deal with the situation. She could have raised concerns with managers. She could have asked for help from another member of cleaning staff. The Claimant did not put forward any reason why she behaved as she did, rather than dealing with the situation another way.[102]I also note the context of the Claimant’s role was in a hospital. Although the incident involved the Claimant and a member of hospital staff, hospitals by their very nature are used by many vulnerable people. The photographs of the location taken by Mr Nunes show the location this incident happened was a public area where patients, staff and visitors could see what was going on. The Claimant does not submit that she would not have behaved the same way towards a patient or visitor but even if she had, the fact that any hospital user could have seen what happened until the Claimant entered the Therapies Office increases the seriousness of the incident.[103]Having considered the misconduct itself and the context of the work, I find that the decision was within the reasonable range of responses. The decision may be at the harsher end of the band of reasonable responses, but it falls within that band nonetheless. My findings: notice pay Was the Claimant guilty of conduct so serious that the Respondent was entitled to dismiss without notice?[104]In relation to notice pay I must decide for myself whether the Claimant was guilty of conduct so serious that the Respondent was entitled to dismiss without notice. I find that she was.[105]I did not find the Claimant’s account of the events of 14 December 2023 credible. The accusations were put to her at an early stage of the investigation, in January 2024. Though there was a delay in starting the disciplinary process because of the Christmas period, the Claimant no longer claims that her memory of the incident was affected or imperfect. The only time the Claimant provided a proper account of what happened was in her witness statement of 21 April 2025.[106]I have considered that the Claimant says that she did not put forward an account because she did not think she would be believed. I do not find this credible. The Claimant has never said that she thought that the investigating officer, Freddy Mumbonga, was not independent. She was represented at the disciplinary and appeal stages by trade union representatives. Even if the Claimant did not think the allegations amounted to gross misconduct she knew she was on a final written warning, so she knew the matter was serious and needed her input.[107]In cross-examination it was put to the Claimant that she her account of the incident set out in her witness statement was a lie. She denied this. I did not find her denial credible. The Claimant failed to put forward any credible reason as to why she could not provide details of the alleged misconduct until two days before the hearing. I find that the Claimant’s account of the incident is not true.[108]I find that the misconduct is in accordance with the statement of case created for the investigation in January 2024. These core facts were corroborated by the three physiotherapy and occupational health staff members. The Claimant was given numerous opportunities to challenge them and failed to do so. I find that on 14 December 2023 the Claimant spoke to a student about flushing a toilet. The student tried to placate the Claimant by going back in and flushing it, and then left the area. However, the Claimant continued to follow the student into the therapy offices and continued to confront her in the presence of others. The student was sent home because she was distressed. The student did make a ‘shh’ gesture and/or noise at the Claimant.[109]Having established the conduct occurred I must now decide whether the conduct was so serious that the Respondent was entitled to dismiss without notice. Had the Claimant simply asked the student to flush the toilet or even asked her to leave it tidier next time I do not consider that would cross the threshold. However, I find that following the student and continuing to berate her publicly about the personal matter of her menstrual blood did cross the threshold of conduct so serious that the Respondent was entitled to dismiss the Claimant for it. It was intimidating behaviour that did cause anxiety to the student, and could cause anxiety to other patients, visitors and staff.[110]As I have said above, I have no doubt the Claimant was doing a difficult job which can be unpleasant. However, the Claimant had many years of experience in the job and knew who she could go to for help if she needed it. Moreover, a hospital context means there are likely to be patients around, many of whom may be vulnerable by reason of their health conditions or from the anxiety and stress of being in a hospital at all. Some of those patients may have medical issues with using the toilet. Seeing a member of staff follow and criticise another person in this public way could intimidate others.
Conclusions
[111]The Claimant’s dismissal was not unfair.[112]The Claimant was guilty of conduct so serious that the Respondent was entitled to dismiss without notice.[113]The claim for holiday pay fails, as the Claimant agrees the outstanding sum has been paid.