Mr J Tobin v William Hill Organization Ltd: 2225858/2024
EMPLOYMENT TRIBUNALS
Case No 2225858/2024
Between
Mr J TobinClaimantWilliam Hill Organization LtdRespondent
Before
Employment Judge WalkerIn person for claimantMr S Gittins (instructed by Counsel) for respondentDate 12 March 2025
REASONS
[1]Mr Tobin claimed unfair dismissal, a redundancy payment, notice and holiday pay.
The Evidence
[2]I had a bundle of documents. Mr Gavin Hilton, a former employee of the respondent, gave evidence for the respondent in his capacity as the dismissing officer. Mr Tobin gave evidence on his own behalf.
Preliminary Matters
[3]The parties had completed the preparatory steps rather late in the day. Mr Tobin had written to say that he wanted further disclosure from the respondent. We discussed whether we should deal with his application. I explained to Mr Tobin that it would be possible to deal with that and make an order if that was the appropriate conclusion, but the case would probably then be adjourned. In the event Mr Tobin chose to proceed on the documentation that we already had.
Issues
[4]The dismissal in this case was alleged to be on the grounds of misconduct and thus I identify the unfair dismissal claim issues as follows.4.1 Has the respondent shown the reason or the principal reason for dismissal and that it fell within section 98(2) of the Employment Rights Act 1996? NOTE: The reason for dismissal is the reason on the mind of the dismissing officer unless the company can be imputed as having the reason of another manager.4.2 Did the dismissing officer have a genuine belief that the claimant had committed the misconduct? 4.5 When the dismissing officer reached his decision, was that based on reasonable grounds? 4.6 At the time the dismissing officer reached the view, had there been a reasonable investigation? 4.7 Was dismissal within the range of reasonable responses? 4.8 Were there any other procedural matters which rendered the dismissal unfair? Notice pay claim/wrongful dismissal[5]The test for breach of contract is not the same as the test for unfair dismissal.5.1 Did the claimant commit an act of gross misconduct such that the respondent was entitled to terminate his employment without notice?5.2 If not, what notice was due? As no notice was paid, that sum would be due to the claimant. Redundancy pay claim[6]Was the claimant entitled to redundancy payment? In order to decide this, I would have to be satisfied that the requirements of business for employees to carry out work of the kind which the claimant was doing had ceased or diminished or were likely to cease or diminish.
Facts
[7]The claimant was employed by the respondent for just under five years. His title was Head of Search. This related to a role in digital advertising. He reported to Alex Carr. On 20 June 2024 Mr Tobin attended an event in the evening, which was organised between him and another person, Jamie, from a company called Redbox which supplied services to the respondent. The purpose of the event was to watch a major football tournament. They took a private space at a bar in the downstairs area of a pub in Soho. The space was large enough to have an area with a television where they watched the football as well as another area around a bar. Mr Tobin said it was probably 40 metres long and the size of two rooms.[8]Mr Tobin said he arrived at 4.15 and at 4:45 he went to the private bar. At between 5:00 and 7:00 he watched the England v Denmark EUR0 2024 group stage game. The event was intended to be attended by 8 colleagues from the respondent and approximately 30 additional guests. However, between 7:30 and 8:00 pm. additional work colleagues arrived. There were about four people who had been celebrating with a member of staff who was leaving. They had travelled 1 1/2 miles from the William Hill office. It was not expected they would be there. These people included a female colleague, Ms Khan.[9]Mr Tobin says he went over to talk to this group because the senior person at Redbox, Jamie, was surprised and somewhat angry that they had attended without being invited. There is some dispute as to whether they were invited and seems they were certainly not on the original guest list but may have been told it was OK to come by another staff member from William Hill. Mr Tobin said that all he did was talk briefly to this group and then he returned to watch the first half of the Spain v Italy game. Mr Tobin then went outside smoking from about 9:00 and left the event at 9:43 pm.[10]Two hours later at 11:43 pm Mr Akash Raval sent a WhatsApp message to Mr Carr, Mr Tobin’s line manager, telling him that Mr Tobin had been inappropriate with Ms Khan and she was going to complain to HR. He did not see the incident himself, but he wanted Mr. Carr to be aware of what was on the horizon. According to the WhatsApp Mr Tobin had put his fingers in Ms Khan’s mouth and grabbed her “ass”. The WhatsApp said it's not been the first time.[11]At 12:29, that is about 45 minutes later, there was second WhatsApp exchange between Ben Telfer and Mr Carr in which Ben Telfer (who was another of the work colleagues who I understand was leaving) saying sounds like Akash informed you what happened tonight. Mr Carr replied that he had been messaged by Akash. He said he noted that Akash didn't see it but it seemed adamant it happened, and he said if it did happen, first he hoped she was OK. Ben Telfer replied she seemed OK later in the night but was pretty upset for a while sadly. Ms Khan’s grievance[12]Despite this exchange nothing happened for some time. Ms Khan did not submit a grievance until 5 July 2025, and Mr Carr, despite knowing about the incident, did not report to HR. Eventually the HR system records Mr Carr informing HR that he was concerned about Mr Tobin’s conduct and being advised about conducting an investigation.[13]In the grievance interview notes, Ms Khan explained that the group (who had been celebrating Ben Telfer leaving) decided to go to the pub in Soho where the client event was happening. Ms Khan said Akash told Ben they could join him there. Ms Khan said that on the way to the pub she had mentioned to two other colleagues, not to leave her alone if they saw Mr Tobin speak to her and if he did to come and intervene. Her statement said: “to be clear nothing like this had happened with him before, he is always just giving me a weird vibe and previously we have had a couple of disagreements”.[14]She then continued to explain that during the time they were there at the pub: “ every time the claimant would join a conversation with me and others he would put his arm on my back and slowly move his hand lower to my butt before moving his arms off completely. This happened more than once”[15]Ms Khan said she was aware of what he was doing but didn't say or do anything as she thought he was just drunk. She said at the pub she also asked Frankie Taylor not to leave her alone with the claimant if he started a conversation with her. She then described an incident where she says: “ later on Frankie and I were having a conversation when Joe joined us. as Frankie was sharing the story I reacted which left my mouth wide open. this is when Joe pushed his fingers down my mouth”[16]She then described how she was shocked, and her instinct was to grab his hand he then took his fingers out and laughed. That shocked her and she thought it was disgusting so she gave an awkward smile, handed her drink to Frankie, said she was going to the toilet where she gargled and rinsed her mouth and cried. She then said she was not sure she could face Mr Tobin in the office as she felt extremely uncomfortable, embarrassed and disgusted with the fact that he thought this was something he could do and found it funny.[17]Mr Tobin knew nothing of the matter from 20th June until 17 July when he was asked to attend a meeting with Mr Carr at which he was informed of a situation and suspended. Investigation[18]Mr Carr undertook the investigation after the grievance was raised. He did not attend as a witness, and I do not know why he was selected to be the investigating officer, other than the fact that he was Mr Tobin’s line manager. On 9 July 2024 Ms Khan was interviewed by Mr Carr, accompanied by another individual Darshit Patel. Ms Khan was accompanied by Aaron Goodall. The meeting was an investigation meeting, and Ms Khan was asked to explain what happened in more detail.[19]Ms Khan alleged that she had told Oliver Harrison and Bhavik Patel not to leave her alone with Mr Tobin and she said the same to Frankie Taylor. She said when she got to the venue, the first person to greet her there was Mr Tobin who told her she looked beautiful today. She said she made a comment back, but she felt uncomfortable. She then described how he kept putting his arm round her back and when taking it off her back he would slide his arm up and down to the back of her but. She explained she refused to speak to him outside of the group environment. While in the group environment, when there was Frankie and Joe present, Frankie said a joke which shocked her, and her jaw dropped. She said at this point Joe put his fingers in her mouth and laughed. When she grabbed his arms to remove it, he continued to laugh. She gave her drink to Frankie and instantly went to the toilets to get away from the situation. When she returned, she went and sat with another colleague called Ben.[20]Ms Khan was asked why she described being uncomfortable around Mr Tobin and she said there was nothing specific like this incident, however he had said things over time which made her uncomfortable particularly at the Christmas party where they had a disagreement. The disagreement was apparently about the Israel Palestine war. Ms Khan was then asked whether, after coming back from the toilet and sitting with Ben, anyone mentioned the incident again and she said that Mr Tobin did not say anything and left soon after. She said Frankie asked if she was OK. She asked about action she wanted taking and she said she would leave it to the business, but she did not want a forced apology.[21]Mr Carr said he would speak to other witnesses and to Mr Tobin. Ms Khan said that Frankie was witness and Oli, Ben and Bhav were aware of the incident her knowledge. She said Akash was not aware of the incident. We know that to be incorrect because Akash reported it to Mr Carr on the night in question.[22]Mr Carr met with various other staff members and made some brief notes. None of the notes were taken formally in the same way that Mr Tobin and Ms Khan were interviewed. In fact, it seems that Mr Carr simply spoke to people and then emailed them with a summary of what he thought they had said and asked them to confirm if it was correct. In consequence, each of their “statements” are very short and none of them describe what happened in much detail. There is no record of a timeline. No-one described the location. No-one explained where the individuals were standing. None of the notes clearly identifies who else might have been able to see what was happening.[23]The only person who said they saw the incident with the fingers was Frankie Taylor. No witnesses saw Mr Tobin move his hands on to Ms Khan’s shoulder or along her back or touch her backside. The other witnesses could only describe what they heard Ms Khan say afterwards and that they believed that she was upset[24]Bhavik Patel confirmed that he had been told that Ms Khan really didn't want to be left alone with Mr Tobin and if she was seen in conversation with only him, that he was to interrupt them. Mr Patel said he was watching the football and did not see the incident. He spoke to Ms Khan after it happened, and she told him that Joe put his hand on her bum early in the evening and she described the incident of him putting his fingers in her mouth. He described Ms Khan as scared and clearly physically upset. Ms Khan asked him what she should do next, so they set up a call with another person Aaron Goodall, after the weekend, as the most senior in their channel to let him know what happened. That person was not interviewed but did attend Ms Khan’s investigation meeting as a companion.[25]Frankie Taylor confirmed that the brief note made by Mr Carr of a meeting between them was correct. The note said that they had been in the pub with Mr Tobin for a few hours when others joined including Ms Khan. They had been drinking prior to the group joining and so that Mr Tobin had been drinking but wasn't alone in that condition. Ms Khan told Frankie that if she was seen chatting to Mr Tobin he should come over and join the conversation. Frankie noted Mr Tobin stroking Ms Khan’s arm or a longer than usual touch on the shoulder. He also said Mr Tobin made comments such as you look different. Mr Taylor reported that there appeared to be a reason for this relating to a recent operation that Ms Khan had had, but he wasn't sure. That was a different explanation to the account given by Ms Khan who made no mention of her arm or shoulder being stroked.[26]Mr Taylor said that when he saw that the two were in conversation, he joined them. At some point Ms Khan’s mouth was open in shock and Mr Tobin put his fingers in mouth. Frankie Taylor was then in shock at the incident. The three of them spoke for a minute or two before Ms Khan went to the toilet to wash her mouth. Frankie Taylor and Ms Khan spoke a little while later with Ms Khan unsure of what to do next Frankie believed only him and those involved in incident saw it.[27]Mr Carr made notes of a meeting with Oliver Harrison. The notes recorded that Mr Harrison said that Ms Khan told him that Mr Tobin had been overly friendly in the past so if she asked them, if they saw him speaking to her alone she wanted him to come over and take her out of the conversation so she could move away. He was watching the football with Bhavik Patel. Ms Khan told him that Mr Tobin had put his hand in her mouth and explained the incident occurred when speaking with Mr Tobin and Frankie Taylor. Ms Khan was physically upset and shaken. Mr Harrison described her expression as appearing to being violated. He stated that it shouldn't happen to anyone in or out of work. He made sure that she wasn't alone with Mr Tobin but Mr Tobin left shortly after. Mr Harrison didn't see the incident. Ms Khan had mentioned in passing that Mr Tobin was overly friendly, but nothing had occurred in terms of an incident that he was aware of.[28]On 17 July 2024, there was a Teams call in which Mr Tobin was notified of the allegation. There is a minute of this meeting made by a note taker. Mr Tobin was told that there was a sexual harassment allegation from Ms Khan against him and the allegation was that he touched her in an inappropriate way on her lower back and bum as well as placing his fingers in her mouth. Mr Tobin was shocked to hear it and while he recalled speaking to her at the event, he stated nothing like that happened.[29]Mr Tobin was asked to give details of what happened that night and explained it around 7:30 to 8:00 everyone had a few drinks and at about 8:30 was with the rest of the guys for about an hour or so no. He watched the first half of the game with the RedBox people and again stated that he was shocked to hear these allegations. He did admit speaking to Ms Khan and said it was all friendly and nothing out of the ordinary occurred and he didn't recall any inappropriate behaviour. He also said it was not in his character to behave in that way. When asked after a short adjournment if he had anything to add he said that he felt physically sick and understood that these allegations were serious allegations and horrible to hear. He was told that there was an eyewitness and it would be passed onto a disciplinary hearing and that he was suspended until further notice.[30]Mr Tobin was told that Frankie Taylor' saw the incident and it had been confirmed that Ms Khan was distressed by the incident. Mr Tobin said he was struggling to find words to say and asked if he needed to get legal advice and if someone would be getting the CCTV footage from the bar. In fact, as soon as Mr Tobin knew about the allegation he and his partner went to the bar and asked them about the CCTV footage. They would not give Mr Tobin the footage but did tell him that they had a policy to give it to lawyers or police. In practice the bar copied off the footage from that night and saved it so that it was not deleted and was available some months later.[31]Mr Tobin was sent notes of the meeting and replied saying they looked like they were a fair reflection but clarified 3 points. He confirmed that at no point were he and Ms Khan alone. He confirmed that he had spoken to Ms Khan and asked if she was still attending the free Palestine March. He also confirmed he asked her and the rest of the group what they thought about the football. He then referenced his request about CCTV and said that was to support his view of events. He also said he had enquired if other people would be spoken to, to corroborate his version of events.[32]Mr Carr prepared an investigation summary report of the investigation he carried out between 12 July and 15 July 2024 including notes from the investigation meetings conducted with Mr Patel, Frankie Taylor and Oliver Harrison. He recommended that it should proceed to a disciplinary hearing and his rationale was that Mr Tobin was aware of the policy “Everyone matters”. He noted Mr Tobin denied the allegations and appeared shocked that the complaint being brought forward but confirmed that he had spoken to Ms Khan on the date in question. Based on there being eyewitness testimony from a member of his team alongside multiple witnesses who saw the aftermath of the incident where Ms Khan being physically distressed and emotionally upset he believed there was sufficient incident evidence to suggest the incident did happen. He had chosen to suspend Mr Tobin as a duty of care to his colleagues.[33]The HR system notes show there was a significant amount of interaction over the investigation which was extended as a result of Mr Tobin asking for more people to be interviewed. Initial effort to arrange a disciplinary hearing[34]On 29 July, Mr Hilton who had been appointed to consider the matter the disciplinary hearing, invited Mr Tobin to a disciplinary meeting. Mr Tobin was sent to the investigation report and the statements. Mr Tobin replied to Mr Hilton with several questions. One of the questions he raised related to the evidence. He said that they did not seem to be anything added from the first meeting. Although minor tweaks had been made to one of the statements after the first copies were shared, Mr Carr had said there would be a further investigation into the points raised the initial meeting. Mr Tobin referred to up to 30 additional witnesses on the evening would be approached for statements. He also said he'd requested the CCTV to be reviewed. He was logged out of the system and not allowed to speak anyone to anyone so he assumed that there would be a full investigation to gather evidence on both sides. He was concerned that there was nothing from his side to review ahead of the meeting. He also had been unable to access the policy document everyone matters.[35]Mr Carr and Mr Tobin had a call on 31 July and Mr Tobin wrote to Mr Carr on 1 August referring to it. Following that call, on 31 July, Mr Hilton wrote to Mr Tobin cancelling the disciplinary hearing and stating that he understood after Mr Tobin’s conversation with Mr Carr that there was more work to be done to ensure they had all the information that he wanted to be considered. Further investigation[36]There was an exchange of emails between Mr Carr and Mr Tobin about the investigation. Mr Carr had spoken to the three individuals who statements had all been provided and explained that the number of statements had been kept to the minimum for confidentiality and also in relation to Mr Tobin’s professional reputation which he had previously cited as a concern. He said that if there was somebody that Mr Tobin felt he should speak to who could give a different account or provide material evidence to change the outcome of the investigation he would speak to them. He referred to the fact that Mr Tobin mentioned the three most critical to speak to were Thu Van Le, Akash Raval and James from Redbox. Mr Carr also referred to a conversation about the CCTV footage from the night which he said was not something he was looking to obtain. He did say however if this was something that Mr Tobin would like to seek from the bar, please do and he could take it into consideration as part of his investigation. He said he would reconvene the investigation and speak to the additional named witnesses. Once he had done that there would be a reconvened investigation meeting where they could discuss his additional findings and delivering outcome.[37]Mr Tobin emailed saying that he was asking Mr Carr to talk to additional witnesses. He proposed Ben Telfer, Ben W, Kenley, Temi and Jonny as this would provide fuller context for the disciplinary manager regarding the level of intoxication of the complainant when the uninvited group arrived and thereafter as they were continuously consuming shots in the open bar. He also wanted to investigate Frankie Taylor’s state given that he was the primary witness.[38]Mr Tobin referred to a report that Mr Taylor had vomited due to the level of alcohol he had consumed that night, and this was similar to a situation the summer party. Mr Tobin had reason to believe that some of these additional potential witnesses may have gone to the club with the complainant after the bar and it would be good to substantiate that in the file notes as the current statement suggested she was visibly distressed but appears then to resume partying all evening after the incident.[39]Mr Tobin noted that he was sure that anyone who was notified about the allegations would also be shocked, but he was more than happy for them to be questioned if it meant they could get to the truth. He was concerned at the witness selection and line of questioning appeared very deliberate and would only represent the complainant's point of view. He also asked about the nature of Frankie Taylor's statement, whether it was given verbally, signed and whether he would stand by the comments given how seriously allegations were. He thought one comment about not wanting to be left alone with Joe didn't seem to make any sense at all given that Frankie was already at the venue when the complainant arrived, and he wanted to know when this had been communicated.[40]Mr Carr interviewed Thu Van Le and prepared a similar short statement in form of emailed bullet points. Again, there is no suggestion this was a formal interview or that contemporaneous notes were taken. Thu Van Le returned the email with some annotations. He confirmed that someone had been sick, but he wasn't sure if it was Ben or Frankie. He said a few people were drunk and Joe had quite few drinks during the football but by the end of the evening wasn't that drunk. Frankie was quite drunk but not alone on that level. He spent a large proportion of the night with Mr Tobin, but there were times when he went out for a cigarette or to get a drink. He didn't notice anything out of the ordinary happen. Most people were watching football for the majority of the evening. He left after he saw Mr Tobin get his Uber, and he wasn't sure of the time, but it was probably before 11:00 pm. Previous to this he, Mr Tobin and James from Redbox were outside having cigars and chatting. There were photographs of this. He was surprised to hear that anything out of the ordinary had taken place. As a team things are discussed but all that was discussed the following day was football. He had worked for the respondent for a long time and with Mr Tobin for a long time and nothing like this had ever happened before.[41]Mr Carr also spoke with Frankie Taylor again and made an amendment to the note which confirmed that Ms Khan mentioned to him she didn't want to be alone with Mr Tobin near the start of the evening, not long after she arrived but he was unable to specify an exact time.[42]There was a bullet point e-mail record of a discussion with Mr Raval which stated that he had arrived around 5:00 to 5:30 pm. Ben Telfer called to suggest meeting up to which Mr Ravel said he was out with Redbox. He then asked James from Redbox if it was OK for Ben and a few others to attend which James had agreed and said more the merrier.[43]Ben Telfer arrived with Ms Khan, Oliver Harrison and Bhavik Patel. One of the first things Ben had said was that Mr Tobin was “absolutely smashed”. Mr Raval thought Mr Tobin was visibly drunk and, while a lot of people towards the end of the night were very drunk, early in the night, Mr Tobin was more drunk than most. Mr Raval spent most of the evening with Ben Telfor as it was his last day with the company and also wanted to avoid spending too much time with Mr Tobin as he was drunk and not pleasant to be around at that point.[44]Mr Raval did get a couple of drinks with Mr Tobin but saw him going to and from the bar regularly. Mr Tobin was doing his own thing, and he tried to stay clear. They were both mingling with different groups. He went out to get some air and came across Ms Khan and Frankie when he was with Thu Van Le. They looked like they had abruptly finished the conversation they were having, and he felt tension or discomfort in the air. It didn't recalls seeing Mr Tobin too much after that but spent most of the time with Ben so was unable to time say what time Mr Tobin was there till. He was told later that evening what had happened when he'd gone to another bar leaving the event.[45]Mr Tobin was then invited to a reconvened investigatory meeting. The notes from this meeting which took place on 14 August recorded the fact that Mr Tobin felt the evidence was insufficient. He raised a number of points. He referred to inconsistency in Frankie Taylor’s evidence and the fact that there was no timeline.[46]Mr Tobin was concerned that all of the people involved had time to discuss amongst themselves what had happened. In contrast he had known nothing and then had been blocked from the system and had no way of collecting evidence. He specifically asked if he could do his own investigation so he could prove it didn't happen. He pointed out that there were pictures at certain timelines and CCTV second by second and if he knew the specific time it was alleged to have happened, he could check. Mr Carr stated that did speak to people on the list but not to everyone. Mr Carr replied that said he had reopened the case and spoken to additional people.[47]Mr Tobin wanted to know why no one had requested the CCTV. The meeting finished with Mr Tobin stating: “to clarify you will not speak to other witness is and I'm not allowed to either?”. Mr Carr replied that was correct.[48]The investigation report was expanded and the rationale for the decision which Mr Carr had reached included an additional paragraph stating that Mr Tobin requested that he spoke to additional members of his team who were at the event of that night who could give an account of his whereabouts. He reopened investigation and spoke to two additional people he had named, one of which had been told about the incident that night and saw Ms Khan distressed that evening. As a result of neither statement providing any evidence contrary to his original conclusion, he had informed Mr Tobin that he remained suspended. He had come to the conclusion that based on the evidence he had gathered, he had reasonable belief that the incident did happen.[49]The investigation report was sent to Mr Tobin. By this stage a member of the HR team had been included in the e-mail exchange and a number of points were made by Mr Tobin where he essentially questioned the evidence and Mr Carr’s impartiality. In particular at point 3 of his complaints about the investigation, Mr Tobin said he believed that Mr Carr had questionable motives and that was linked to his exposure of Mr Carr’s own misconduct. He referred to Mr Carr having had multiple inappropriate sexual relationships with a number of colleagues and having made racist remarks which he had encouraged the victim to report. He thought removing him from the team would make it easier for Mr. Carr to work closely with Mr Raval, a longtime friend and who had wanted his role and interviewed unsuccessfully for both his current and previous positions.[50]Mr Tobin referred to Frankie Taylor being unhappy with his pay and having threatened to leave in the past and being heavily intoxicated on the night in question so that his recollection two weeks later would be unreliable unless pre discussed with Mr Carr and others. He felt that Mr Carr’s attitude was that he already had his view and didn’t need anything else.[51]The bundle includes the records kept by HR which appeared to be on a computer system where emails were uploaded. In relation to that particular e-mail, Mr Hilton who was assigned to carry out the disciplinary, was informed at that points 1, 2 and 4 related to the disciplinary process so he should review them. As for Point 3 (which I detailed above), he was told that was being managed separately so there was no requirement for him to address this in his disciplinary meeting. There was no disclosure in the bundle relating to any separate management of that point and Mr Carr did not give evidence, nor did any member of the HR team so here is no explanation as to whether there was any basis for the assertion by Mr Tobin that Mr Carr had a reason to be biased. Disciplinary hearing[52]A disciplinary hearing was convened for 30 August 2024. The allegation put to Mr Tobin was that he had breached the Equality- Everyone Matters policy with inappropriate physical contact which could be construed as sexual harassment towards a colleague on 20 June 2024.[53]On 28 August, Mr Hilton asked HR for some advice. He pointed out that having read all the documents provided, he could see there was a lot of challenge from Mr Tobin as to the process that has been undertaken. He wanted to discuss this with HR in the session he had set up the following day. His understanding was that his role wasn't to engage on this subject but to make a decision on what happened on the evening of the grievance, given the evidence available. HR replied that they would be happy to discuss this with during the session but if Mr Tobin had any concerns regarding the process he should pick this up as part of a disciplinary process. Therefore, the points 1-2 and 4 in Mr Tobin’s e-mail could be addressed during the meeting. Notably point 3 was still to be omitted.[54]The bundle contains an exchange between Mr Tobin and Maria Stevenson of HR in which she wrote directly to Mr Tobin on various points he had raised about the investigation. She pointed out that his point 1 about bias and favouritism, point 2 on flawed process and 4 about doubtful evidence were all points to raise in the disciplinary meeting. In relation to point 3 being questionable motives, she asked for more detail to enable her to review the matter further and asked for names and timelines of colleagues where there had been alleged inappropriate sexual relations with Mr Carr and details of the alleged racist remarks in the name of the alleged victim and details of the group present. There's no further information in the bundle about this and Mr Hilton was unaware of any further follow up relating to this matter.[55]On 29 August that was a follow up to the telephone discussion Mr Hilton had with HR in which they had clearly discussed the meeting process and the type of questions which could be asked. He was advised to discuss Mr Tobin’s concerns over the disciplinary process going through each of the points he raised in his email but if he raised point 3, please advise that it's being managed separately to the conduct case. Mr Tobin should already be aware of this is Maria has been speaking to him separately. She then raised the possible outcomes which ranged from no case to answer to summary dismissal but advised against a first written warning.[56]There is no reference in the HR notes to CCTV. Mr Hilton expressly said that he understood from HR that the CCTV need not be provided. In part this was because the CCTV was not under the control of the respondent since the incident occurred in a venue which did not belong to the respondent. However, it seems the respondent felt no responsibility even to ask for the CCTV.[57]The disciplinary hearing took place on 30 August. The meeting notes taken by a note taker, Michael Sheehan. Mr Hilton went through the events of the evening and asked Mr Tobin to explain himself and also asked him about the issues he had with the process. Mr Tobin said that he had timed WhatsApp messages and time stamped pictures from the night in question which contradicted the witness statements and went against what one of the witnesses, Akash Raval was saying about trying to avoid him. No one viewed his photographs or WhatsApp’s. Mr Tobin at one point said that he had asked about the CCTV and was told the business was not allowed to view it. He also complained that in the 28 days prior to him being told about the allegation, he noticed that Mr Carr behaved differently towards him giving directions directly to Mr Raval and circumnavigating him. He thought it was strange but had no idea that these accusations were hanging over his head.[58]Mr Tobin complained that he thought Mr Carr was not neutral or impartial and should not have been in on the disciplinary. He felt the investigation should have been carried out by somebody neutral.[59]Mr Hilton adjourned for a time to consider the position as instructed by his HR team and then explained the outcome. He said: “there has been a lot of noise around the night, focused on allegations of inappropriate physical conduct which could be construed as sexual harassment towards a colleague. We've heard from a number of witnesses and my belief is something did happen. We've not taken this decision lightly. Consequently, I've decided that an appropriate sanction would be summary dismissal.”[60]Mr Tobin was told about his right of appeal but did not do so he had 10 days from receiving the outcome letter to raise an appeal.[61]The dismissal letter was dated 4 September 2024 and confirmed the decision to terminate Mr Tobin’s employment on the grounds of gross misconduct. The dismissal reasons[62]The dismissal letter confirmed the reason for the decision being that Mr Tobin had reached the Equality - Everyone Matters policy with inappropriate physical contact which could be construed as sexual harassment. It continued: “more specifically you touched your colleague's body and later stuck your fingers in their mouth during an event attended by evoke employees”.[63]The letter recorded that Mr Hilton had considered Mr Tobin’s version of events along with all the evidence gathered including interviews with various witnesses and notes from his meetings with the investigation manager, Alex Carr and the hearing with me. He then addressed the issue about whether or not the group of employees had been invited to the event. He recorded his it was his belief they weren't allowed to attend but regardless of that the incident would still need to be investigated and anyone attending had the right to feel safe at the event whether they were invited officially or not.[64]Mr Hilton recorded there were witnesses who had confirmed that Ms Khan requested not to be left alone which suggested she had felt uncomfortable with Mr Tobin previously. He also recorded there were also several claims that Mr Tobin appeared to be drunk. He said: “The statements advise that you were not alone in this state, but there has been a suggestion from one colleague that you appeared to be more drunk than most, and then you that you can be unpleasant to be around when you have consumed alcohol. Most importantly there is also a witness to the main complaint of you putting your fingers in Ayelah’s mouth, along with witnesses who saw Ayela upset in the aftermath.”[65]Mr Hilton concluded: “From the evidence gathered, I consider that there are enough parties involved to have given their version of events to provide me with a general overview of what happened during the incident on 20th June 2024. From my findings I have reasonable belief that the allegation of you making inappropriate physical contact towards another colleague is true. There appears to be a collective agreement from statements on this point, and I believe that this is sufficient evidence to issue a sanction.”[66]He then explained Mr Tobin was being dismissed without notice.[67]Mr Hilton went on to address Mr Tobin’s concerns, explaining that in relation to the assertion that Mr Carr had not done his due diligence and should have retrieved CCTV footage, that as the bar was not part of the company's premises, he had no access to it. In addition, Mr Carr felt that witness statements provided sufficient evidence for him to form a view of events.[68]Mr Hilton stated: “Alex also confirmed that you are free to approach the venue and ask if they are willing to provide the CCTV and should they provide you with access, he would have been happy to consider the footage as part of his investigations. However he did not consider the footage was crucial to the investigation, ass I have stated, because he considered that the witness statements provided sufficient evidence.”[69]The letter responded to Mr Tobin’s concern about speaking to specific witnesses and that Mr Tobin complained that Mr Carr only spoke to colleagues closest to him. “To confirm, the statements initially retrieved were not handpicked by Alex but named individuals as part of the complaint. Alex also willingly went back to investigation upon your suggestion to allow him to speak to 2 additional witnesses you named. He chose not to speak to the external stakeholder you mentioned, firstly, to reduce any reputational damage and secondly because he was able to find the information from an internal source. With regards to the additional names that were provided by yourself on top of the first 3, (2 of whom Alex did speak to), it is my understanding he did not feel the need to speak to these sources as he considered the evidence from the 5 people interviewed as witnesses to be sufficient for him to get a thorough understanding of events and make an informed decision that there was a case to answer as most statements agreed that something did happen between you and Ayela.”[70]In relation to the assertion that Alex should not have been the investigation manager as he was not independent, Mr Hilton explained that the policy ensures that a different manager is assigned at the disciplinary stage so that they could come to their own conclusion based on the information at hand. The Investigation Manager only makes a decision that the case should proceed to a disciplinary hearing. He considered that as the Disciplinary Manager assigned to the case, he happened to agree with the Investigation Manager’s assessment that there was a case to answer which is why he decided to issue a sanction. Appeal[71]Mr Tobin had until 14 September 2024 to appeal. He did not. He told the tribunal that it took some time to get him the papers but as far as I can tell he was sent the notes prior to the dismissal letter. Mr Tobin did ask Mr Hilton whether the CCTV had been requested and was told that it had not been requested from the bar. He was told if he had concerns about this, he could raise it as part of the appeal. He then asked another question about the CCTV and the police and was told that Mr Carr had not seen them or requested to view the CCTV footage and not been in contact with the police, but Mr Hilton did not know about other colleagues. Police Investigation[72]Meanwhile on 10 August 2024 Ms Khan reported the incident to the police and they then commenced an investigation. That investigation was ongoing during the period of time when Mr Tobin was invited to and took part in the disciplinary hearing which led to his dismissal.[73]There are two versions of a statement by the police completed on the Statement of Witness form which is used under the Criminal Procedure Rules rule 16(2) of the Criminal Justice Act 1967. Both are statements from Constable Daniel Aiken. One is dated the 3 January 2025, and the other is dated February 2025. Both statements address the same matter. Essentially both statements say that they are made in relation to an investigation into a claim of alleged sexual assault. There was a delay between date when events happened and when it was reported to police. It was reported to police on 10 August 2024. The police officer is aware that the employer conducted an internal investigation and that Mr Tobin lost his job as a result. The police officer was able to recover the CCTV from the location because Mr Tobin and his partner had asked for the footage to be saved otherwise the CTTV footage is erased after 30 days. The venue had saved the footage from the entire evening and after having spoken to Ms Khan and taken a statement and reread the initial investigation to confirm the time of the incident, Met Police officer Aiken viewed the footage multiple times. Using the time in descriptions provided, he was able to identify Mr Tobin and Ms Khan from the footage. Neither of the alleged offences were caught on camera. The footage was split over 2 cameras and while both parties are seen on the footage, there are other people who are in the footage and none of them react to anything.[74]The statement says: “I did not see any sexual assault or other forms of criminal or unacceptable behaviour”.[75]The police officer also spoke to three character witnesses who confirmed Mr Tobin’s claim that nothing happened. Mr Tobin was voluntarily interviewed.[76]It appears there was some question over the police officer’s statement and the second statement was provided on 19 February 2025 which repeated the same matters. It concluded with a confirmation that his statement was an accurate discussion of his discussions with the event coordinator, James Salins (who would be James from Redbox) and observations of the CCTV from the venue.[77]The police officer did not give evidence. However, I have no doubt that the intention of the police officer is to confirm that not only was there no assault that he could see from the two cameras but also that there was no reaction at all which suggested that anything had happened. I understand that the criminal investigation was ended with no action taken. I also have no doubt that, had the Police officer been of the opinion that possibly something could have happened which was not visible on the CCTV, he would have said that. It is clear from the Police statement that the police officer is confirming that the CCTV does not show any incident and had anything occurred, it would have done.[78]Mr Tobin told me that he had been told that the CCTV covered two directions. He believed that one camera faced over the bar outwards and therefore captured people close to the bar and the second camera covered the area from the other direction by the TV screen and thus the two cameras covered the entire area. The Submissions[79]The respondent kindly agreed to give their submissions first in order to facilitate Mr Tobin. The respondent argued in relation to wrongful dismissal that there needed to be blameworthy conduct, and this was an allegation of sexual harassment which clearly met the test of going to the root of the contract. The respondent suspended Mr Tobin as soon as it the allegation came to their attention.[80]The respondent argued that the police officer’s statement was hearsay evidence and not enough. No one had the option of watching CCTV. It was inherently unlikely that the two cameras would provide sufficient cover at all times. The police statement did not make clear whether the Mr Tobin and Ms Khan were in view at all times. It was more likely that they were not, and that the incident did take place.[81]Regarding the Unfair dismissal claim, the test in British Home Stores and Birchall was the correct test as had been identified in the issues. The facts showed the reasonable grounds and that it was within the range of reasonable responses to dismiss. The main issue in the case had been over the procedure. It was not in dispute that there were policies, and that the basis of their claim focuses on the investigation. There was no failing in the general process, just over the investigation.[82]Mr Hilton’s evidence was that internal reports were provided and then he and HR were involved in making the decision. There was no underlying problem and Mr Hilton would not be gullible enough to swallow that. All decisions were made by Mr Hilton with the full support of HR following their guidance and he made independent decisions. The reason for dismissal was conduct. There was no evidence of anything further. Despite Mr Tobin’s evidence, in effect what is being put in his favour is that the tribunal are being asked to consider some sort of collusion between Mr Taylor Mr. Khan and the support of witnesses. This suggestion of collusion was far-fetched.[83]The allegation itself was made out. On the evidence available to Mr Hilton most of the witnesses other than Jamie from Redbox were spoken to that was two out of three. Mr Akash Raval was spoken to. The claimant said that Mr Thu Van Le was critical, and he was spoken to. Jamie from Red box was an external witness not employed by the respondent and there was no requirement for them to it to interview him.[84]Mr Tobin had raised concerns about potential reputational damage and so it was reasonable to limit it to those who were involved. Mr Raval had said that the individuals had been given an invite. Whether or not Ms Khan should or shouldn't have been there is somewhat moot. Even if they shouldn't have been there, that behaviour should not have happened.[85]Essentially, Mr Tobin’s concerns were an allegation of bias by Mr Carr. However, he didn't raise it at the beginning. Mr Tobin confirmed he was happy with the initial investigation meeting on 14 and 15 July and with the notes. There was no pushback about Mr Carr re-opening investigation on 19 August. It was simply not tenable to be now adopting the argument that Mr Carr was biased. Mr Tobin was happy with what happened. He made requests further witnesses he was concerned about them being left out and this was followed up. There was a reasonable investigation.[86]In relation to the CCTV it was not within the respondent’s gift. It was an external event, not organised by the respondent and they had no control over the CCTV. The suggestion that investigation was delayed to allow CCTV to be deleted doesn't hold water. The actual complaint was not raised for about two weeks. There was then a rapid investigation and interview and suspension and there was no delay. Mr Tobin had said it was not possible for him to get the CCTV and the same position would have applied to the respondent.[87]Mr Hilton had reasonable grounds for the decision and a reasonable investigation had taken place. Dismissal was within the range of reasonable responses. Given the seriousness of the offence, summary dismissal was the only reasonable response. Claimant’s submissions[88]The claimant submitted that he did not do the alleged act. He hoped to clear his name. He had been giving the same explanation throughout. He did not believe that the respondent had a genuine belief in his guilt. Mr Carr had been clearly biased. The police had reviewed the CCTV and there was no evidence of the misconduct. He had key evidence of photographs and receipts which were time stamped but the respondent did not look at them. The allegation ignored the fact that Frankie Taylor had his witness statement altered to fit the story, and nothing was clarified by it.[89]He pointed out that Ms Khan was not on the guest list and therefore should not have been at the event.[90]The only evidence was that of a WhatsApp from Mr Raval which provoked the process. PC Aitken interviewed further witnesses who were not interviewed by the respondent. There was a full police investigation which determined that the event did not happen at all. In terms of procedural errors Mr Carr ignored key witnesses.[91]James Salin (from Redbox) had been blocked from his potential defence. He had mentioned quite a few times that a statement from Mr Salin would clarify position.[92]The allegations were put to him 28 days after the event when the CCTV would normally have been erased and thus not available. It was only because he and his partner went straight to ask for it that it was retained. Otherwise, it would have been destroyed. He felt this was deliberate.[93]The witness statements contained many inconsistencies between various statements. Ms Khan says she didn't react but also that she instantly went to the toilet that. Those are different stories.[94]He didn't appeal as he had no chance of having it proper unbiased in hearing. He thought ACAS was a preferred route and it had equal value to the appeal.[95]Mr Hilton admitted a previous relationship with Mr Carr but said it was purely professional. It was suggested that the police statement was hearsay but the entire case was hearsay. 96 28 days delay gave the respondent the opportunity for the witnesses to collude together. He thought his dismissal would not have happened if there had been an unbiased investigation, but the investigation was biassed and flawed.[97]The CCTV would have supported his position. The police carried out a full investigation and their conclusion was nothing happened that evening
The Law
[98]The main legal provision applicable is Section 98 of the Employment Rights Act 1996(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 (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (c) relates to the conduct of the employee, (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case.[99]The effect of section 98 of the Employment Rights Act 1996, is that it is for the employer to show that the reason for dismissal was a potentially fair reason. Section 98 (1) includes as potentially fair reason is a dismissal for conduct. If a potentially fair reason is shown, section 98 (4) provides that it is the employment tribunal to determine: “whether the dismissal is fair or unfair (having regard to the reason shown by the employer. ACAS GUIDE – Key points on a fair procedure[100]Whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this: ●● Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. ●● Employers and employees should act consistently. ●● Employers should carry out any necessary investigations, to establish the facts of the case. ●● Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. ●● Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. ●● Employers should allow an employee to appeal against any formal decision made.[101]The ACAS guide provides in relation to investigating cases that where investigating a disciplinary matter, the employer must take care to deal with employees in a fair and reasonable matter manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against. Any investigatory meeting should be conducted by a management representative and should be confined to establishing the facts of the case.... Choose an investigator Who should be the investigator will often depend on the seriousness and/or complexity of the matter:• In the majority of cases, where the matter to be investigated appears to be clear and the facts are not in dispute, the role of investigator may be carried out by an appropriate line manager or someone from HR for instance• If the evidence to be investigated is more serious or complex (such as potential gross misconduct, discrimination or bullying) then, where possible, appointing someone more senior or experienced may be beneficial. However, an employer should be careful to ensure that there are still appropriate members of staff available if a disciplinary hearing (and appeal hearing) may be necessary Case Law on the procedure where the dismissal is a conduct dismissal British Home Stores V Burchell[102]First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. Foley v Post Office[103]A tribunal must not substitute its own view for that of the employer, provided the employer’s action was within the range of responses of a reasonable employer, and this principle applies both to findings on whether the decision itself was reasonable, and on whether the process adopted was reasonable – Foley v Post Office (2000) IR LR 82, and Sainsbury’s Supermarkets Ltd v Hitt (2002) EWCA Civ 1588. Sainsbury Supermarkets Ltd v Hitt [2003] IRLR 23[104]In this case, the Court of Appeal also applied the ‘reasonable responses’ to the reasonableness of the employer’s investigation and the procedure followed by the employer (the third Burchell requirement).[105]Whilst the employer’s discretion is not completely unfettered, the test to be applied by the tribunal is ‘objective’ as stated by the Court of Appeal in Fuller v London Borough of Brent [2011] IRLR 414 and reaffirmed by the Court of Appeal in Turner v East Midlands Trains Ltd [2012] ICR 375/ Newbold v Thames Water Utilities Ltd [2015] IRLR 734 and the employer must act ‘proportionately’ (Connolly v Western Health and Social Care Trust [2018] IRLR 239). Further, under S98(4), regard must also be had to ‘equity and the substantial merits of the case’ Miller v William Hill Organization UKEAT 033612[106]This case cited the case of A v B 2003 IRL R-405 in which Elias J in the Employment Appeal Tribunal, said serious allegations of criminal behaviour, at least where disputed, must always be the subject of the most careful investigation always bearing in mind the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate, or at least point towards the innocence of the employee, as he should on the evidence directed towards proving the charges against him.[107]This was cited with approval in Salford Royal NHS Foundation Trust versus Roldan 2010 IRLR 721 at 13. The reason, Elias J said in Roldan was because the employee’s reputation will be seriously affected, and their ability to work in their chosen field or their chosen industry could be irreparably compromised if they are dismissed because of conduct which amounts to a criminal offence.
Conclusion
[108]I set out below my consideration of the issues. What was the reason or principal reason for dismissal. NOTE: The reason for dismissal is the reason in the mind of the dismissing officer unless the company can be imputed as having the reason of another manager.[109]I am not able to reach any conclusion as to whether or not or not Alex Carr had other reasons on his mind which impacted on the way in which he selected any witnesses to interview or the information they gave him and the way in which it was recorded. I say this only because the respondent had not provided any disclosure relating to Alex Carr[110]The claimant had said in his ET1 that ACAS guidelines required a neutral investigator, yet Alex Carr my manager with whom I had personal disputes was assigned. He recorded his previous conduct should have disqualified him. This might have led to a recognition that there should have been disclosure relating to Alex Carr and any known personal disputes or misconduct. There was one e-mail exchange I found in the bundle in which it appeared HR was investigating this matter, but I have no information as to the outcome.[111]As I noted at the outset, before the detailed issues became clear, I asked Mr Tobin if he wanted me to deal with his complaints about disclosure and that might lead to the case being postponed to a future date. He chose to go ahead and said he was ready, but it is clear that it would have been possible for orders for disclosure to have uncovered more relevant information. However, we as we went ahead with Mr Tobin’s agreement, I can only record the fact that I cannot reach any conclusion on this and therefore I have to proceed on the basis of the evidence before me.[112]It is my view that the reason for dismissal was the alleged misconduct of the claimant touching Ms Khan inappropriately. Did the dismissing officer have a genuine belief that Mr Tobin had committed the misconduct.[113]I note from the dismissal letter that the conduct is only minimally described as touching your colleague’s body and later sticking your fingers in her mouth. I understand from Mr Hilton that he did genuinely believe that it happened, but he did say that was on the basis that the standard of proof he was applying was that it was more likely than not and then described his understanding as a general overview. When the dismissing officer reached his decision, was that based on reasonable grounds[114]When the dismissing officer, Mr Hilton, reached his decision it was based on brief witness statements taken from Ms Khan and Mr Taylor in particular regarding the incident. He took the view that there had been an incident involving the fingers in the mouth from this and from the other witnesses who had been told about it later and their reaction to Ms Khan's demeanour at the time. He had little or nothing to go on in relation to the assertion that her body had been touched. The only witness who mentioned touching apart from Ms Khan herself was Mr Taylor who described something entirely different.[115]Miss Khan had said that she did not react to the body touching so that there was no one able to record her reaction nor did nor did anyone know what happened.[116]The only reason given by Ms Khan for her disquiet about Mr Tobin and her being left in his presence was what she described as a weird vibe. One other witness described some history between Ms Khan and Mr Tobin which was inconsistent with her own explanation. The first WhatsApp message stated this was not the first time but from Ms Khan’s own account, it was the first and only occasion of any touching.[117]There was a general awareness that the two had not agreed over the company's stance in relation to the Israel Palestine conflict. In those circumstances, as Mr Hilton chose not to interview Ms Khan himself or Mr Taylor, I do not believe he had reasonable grounds for reaching the view that there was any body touching.[118]I do appreciate that allegations of sexual harassment are often difficult to establish and often done in ways that are private so that there are no witnesses but, in this case, it was allegedly done in a public bar.[119]There was only one witness to the fingers in mouth incident. That witness also described Ms Khan remaining in the bar for a minute or two before rushing out, which was at odds with Ms Khan’s description of events. The same witness described shoulder touching which did not happen. He was also potentially very drunk on the evening in question.[120]Mr Hilton based his view to some extent on one witness who said that Mr Tobin was very drunk but other witnesses said he was not particularly drunk.[121]Overall, there were very limited grounds for reaching the view that Mr Hilton reached about the alleged misconduct. At the time the dismissing officer reached the view, had there been a reasonable investigation[122]At the time the dismissing officer reached his view there had not been a reasonable investigation. Case law shows clearly that the more serious the likely outcome the more careful the investigation should be. I am conscious that it is not for me to substitute my view for that of the respondent, but it is clear from the authorities that the objective of the investigation in a situation with potentially such a serious outcome should be as much focused on seeking evidence to clear the alleged perpetrator as finding evidence to condemn them.[123]In this case the focus of the investigation was to verify the allegations. Mr Carr only went back to interview other people when Mr Tobin had put it in writing his concern about the limited scope of the statements taken.[124]Over two emails, Mr Tobin named a number of people who should have been interviewed and in fact only two extra interviews were undertaken. One of those interviews was a person who Mr. Carr knew had spoken to Ms Khan on the evening since he himself had received about a message from him about it.[125]Importantly the CCTV was not obtained nor even requested by the company's investigator. I accept that the CCTV was not within the control of the respondent, but they made no effort at all to contact the bar to request it.[126]Mr Tobin says that there is a policy about CCTV at and that the bar owner’s group will supply it to the police or to lawyers. It would have been possible for the respondent group’s lawyers to have requested it.[127]There is a general proposition that investigation should be reasonable. The Miller case shows that the more serious the allegation the more important it is to investigate in more detail. That case makes clear that where the outcome it is potential criminal matter and where it would have serious consequences for the individual's career the effort should be greater. In this case requesting the CCTV was not an onerous matter. It was not expensive. It could have resulted in the company being able to view the one piece of evidence which would clearly identify what happened.[128]I appreciate that the police might have been in a different position as they were clearly able to obtain the CCTV. I also appreciate that investigations have to be taken relatively promptly and without delay. Nevertheless, the impact of a dismissal for gross misconduct in relation to an allegation of harassment is extremely serious and one which is likely to have career ending outcome for the individual. In those circumstances the effort needed to apply for the CCTV was entirely reasonable.[129]I also note that despite Mr Tobin making it clear that he had time stamped photographs and WhatsApp’s which would have clarified the timing, no effort was taken to review those by either the investigating officer or by Mr Hilton and they were not in the bundle.[130]It is concerning that the statements were very brief, and no effort had been made at all to get a timeline. No effort had been made to identify where the complainant was sitting or standing at the time of the alleged incident or incidents. No effort was made to identify clearly who was around and might otherwise have been able to see the alleged incident.[131]The letter of dismissal explained Mr Carr’s approach towards the investigation as being focused on establishing whether Mr Tobin was guilty rather than seeking any evidence to exculpate him and says as follows: “With regards to the additional names that were provided by yourself on top of the first 3, (2 of whom Alex did speak to), it is my understanding he did not feel the need to speak to these sources as he considered the evidence from the 5 people interviewed as witnesses to be sufficient for him to get a thorough understanding of events and make an informed decision that there was a case to answer as most statements agreed that something did happen between you and Ayela.”[132]It is clear that the focus of the investigation was on proving Mr Tobin had committed the act in contrast to the Miller case which says that there should be equal focus on evidence which would exonerate him. Was dismissal within the range of reasonable responses 132 If that had been a genuine instance of harassment, dismissal would have been reasonable but in this case the evidence from the police officer indicates that had that evidence been available, it would have disproved the assertion. Were there any other procedural matters which rendered the dismissal unfair.[133]Mr Tobin rightly points out that the incident was only reported sometime after it allegedly took place and that the people involved in providing statements had mainly all gone out together afterwards and indeed worked together for some weeks so that there was considerable scope for them to collude over their statements. Given this fact, there was also likely to be concern over whether their statements were genuinely accurate. For example, one of the key witnesses, Mr Taylor had reportedly been so drunk as to be physically sick which raises questions as to what he actually did remember. The statements themselves were very brief and did not set out a time lime or illuminate the location of the people involved so that identifying other likely witnesses was not undertaken.[134]While witness statement were obtained by the investigation, it was also questionable whether or not Mr Tobin was aware at any stage that he could have asked for those witnesses to be present so that he could have questioned them at the disciplinary hearing.[135]There were other matters which also raised worries such as the difficulty of dealing with the case were the individuals who provided statements had spent some time together before the allegation was raised to management. There are many companies who have a policy that if a member of management becomes aware of an issue, they should report it in any event and encourage the individual to go to HR promptly. It appears that Mr Carr took no such action. When a complaint was made by way of a grievance, Mr Carr then took responsibility for investigating it. He then carried out a limited investigation.[136]The key issue in my view is the failure to try to obtain this CCTV and take reasonable steps to review it and the general approach taken to interviewing only enough witnesses to support the complainant’s case without any real regard for the possibility of looking for evidence to exonerate Mr Tobin renders this dismissal unfair. Overall, this was not a satisfactory investigation, and the disciplinary hearing manager did not challenge the evidence enough to make that inconsequential. In fact, his reasons for concluding that Mr Tobin had committed the misconduct were based on a general overview, rather than satisfactory evidence, to use his own qwords. Notice pay/wrongful dismissal Did Mr Tobin commit an act of gross misconduct such that the respondent was entitled to terminate his employment without notice I have recorded the fact that it is my view that the police statement is clear evidence that the incidents alleged did not occur and I have explained why I'm satisfied that the police statement is a full explanation of the fact the CCTV demonstrates no such event took place. In the circumstances it is my conclusion that Mr Tobin did not commit an act of gross misconduct, and the respondent was not entitled to terminate him without notice. Redundancy pay claim[137]Was Mr Tobin entitled to redundancy payment? In order to decide this I would have to be satisfied that the requirements of business for employees to carry out work of the kind which Mr Tobin was doing had ceased or diminished or were likely to cease or diminish. There is no indication of that. Mr Tobin was replaced. Summary[138]The claimant was unfairly dismissed, and the respondent was in breach of contract in failing to pay the claimant’s notice pay. Remedy will be determined at a future date. Approved by:
Conclusion
Conclusion
[1]Most of the calculation had been agreed between the parties, based on accepted actual losses.[2]The first area of dispute was that the respondent submitted that the sum due to the claimant should not be grossed up without taking account of the claimant's personal allowance. I was referred to the cases of Yorkshire Housing Limited v Cuerden UKEAT/0397/09/SM and Finlay UKEAT/0260/14/BA. I do not find this submission correct.[3]The payment will be made to the claimant in the 2025/2026 tax year.[4]The claimant has now obtained alternative employment which commenced on 18 March 2025 (i.e. prior to the previous tax year end) and therefore throughout this tax year, he will be earning from his new employment. He is not receiving any compensation applicable to earnings for this tax year. There is no claim for ongoing losses after the start of the new job.[5]The respondent’s argument is based on cases seeking to ensure that the claimant is put into the same position he would have been but does not get a windfall due to a standard tax rate being used to calculate the gross up, rather than the graduated rate and personal allowance which would in fact be applied. We are not told in those cases what the time periods in question were, but they must have involved on-going future losses.[6]In this case, to take into account the claimant's personal allowance for this tax year as the respondent submits would unfairly reduce the net amount the claimant earns from his new employment. In order to fully mitigate his losses, the claimant must be in receipt of at least the same remuneration, which should be taxed on the same basis as it would have been had he remained employed by the respondent. To allocate part or all of his personal allowance from this new tax year to the compensation would be tantamount to reducing his effective earnings from this new employment and would thus reduce his mitigation. That cannot be a correct approach which is why I am certain that the cases I was referred to must have related to ongoing future losses rather than historic losses in a previous tax year. If the claimant had not obtained new employment, the position would have been different.[7]Unfortunately, there is no mechanism by which the claimant can be paid this compensation which would give him the benefit of personal tax allowances or threshold tax rates which would have been applicable in the 2024/2025 tax year. In those circumstances my conclusion is that the appropriate grossing up should be at a flat rate of 40% which I have done.[8]The second area of dispute was over the appropriate percentage payment for the bonus. The respondent had calculated the bonus on the basis of what it termed “midpoint expectations”. The claimant had never had a midpoint bonus achievement in the past. The respondent’s calculation in the bundle showed a 20 per cent rate for this as opposed to a potential 35 per cent. The reason for this percentage being used was that the respondent does not have a record on file of the claimant’s assessment which was due to take place between 3 June and 30 August 2024. The claimant was suspended on 17 July 2024 and lost access to the respondent’s systems.[9]The respondent’s calculation document in the bundle shows the claimant had a bonus potential of 45 per cent of his salary of £86,460. That means the maximum bonus he could get was £38,907.[10]The company element of 9% of that potential bonus is shown as £3,501.63 which is 9 per cent of the total potential bonus of £38,907.[11]The respondent’s calculation then shows the claimant at 20 per cent rather than 35 per cent of the personal element being what I was told was a midpoint expectation rate as noted above.[12]That rate is not based on the actual likely amount of bonus that would have been paid, and I do not regard that as a proper approach given the claimant was suspended and locked out of the system before the bonus assessment period was completed. Further, the respondent’s calculation of 20 per cent is not understandable. The amount shown is in fact only 7 percent of the bonus potential. 20 per cent is £7,781.40 which added to the company element of 9 per cent at £3501.63, is £11,283.03.[13]If the claimant had been awarded the full amount of his personal element, consistent with previous years when a bonus was paid, 35 percent of the bonus potential of £38,907 is £13,617.45 plus the company element of £3,501.63 = £17,119.08.[14]The claimant says he was always rated at the higher level in the years that a bonus was paid, and I have no reason to doubt that in different circumstances he would have completed and filed the required assessment. There was no evidence from the respondent to counter the claimant’s evidence about his bonus, merely a reference to the absence of the completed assessment. In the circumstances I have taken the bonus rate which is consistent with the claimant’s past performance[15]The bonus would have been taxed at 40 per cent so the net amount is £17,119.08 less 40 per cent (£6,847,63) = £10,271.45. I have used that as the net figure in my calculation. CALCULATION OF AWARD Commencement Date: 17 December 2019 Effective Date of Termination (EDT): 30 August 2024 Length of Service: 4 complete years Claimant's age at EDT: 38 Gross Annual Salary: £86, 460.00 Gross Weekly Pay: £1,766.59 Net Weekly Pay: £1,253.57 Net Daily Pay: £250.71 Pension contributions calculated at monthly £720.50 - £166.27 per week Hearing date: 11 March 2025 New employment started: 18 March 2025 Note: Net weekly pay includes flex balance payment for car Note: The wrongful dismissal compensation is included in the unfair dismissal calculation. Note: The claimant said he did not claim any benefits Basic Award £2,800 (Calculated as 4 x week’s pay capped at £700) Compensatory Award GROSS Loss of earnings 30 August 2024 to 31 November 2025 During 3 month notice period 13 weeks and 1 day 13 weeks – at £1,766.59 per week = £22,965.67 1 day at £353.32 Total sum due for notice period = £23,318.99 NET Loss from 1 December to 17 March 2025 (i.e 15 weeks and 3 days) £1,253.57 net per week x 15 weeks = £18,803.55£1,253.57 net x 3 days = £752.14 Total net pay £19,555.69 Loss of statutory rights £450.00 Expenses incurred in seeking new employment £450.00 Loss of pension £166.27 x 28 weeks = £4,655.56£166.27 x 4 days = £665.08 Total £5,320.64 NET Loss of Bonus payment £10,271.45. Mitigation – Nil as the calculation ends when the claimant got new employment on 18 March 20925 Total Compensatory Award before tax £59,366.77 ======= PLUS Basic Award £62,166,77 TAX COMPUTATION Payment for Notice Period = £23,318.99 – fully taxable Calculated as above Balance - £62,166.77 - £23,318.99 = £38,847.78 Sum to be Grossed up above £30,000 = £8,847.78 Grossed up at 40% 8,847.78 x 100 divided by 60 = £14,746.30£30,000 + £14,746.30 = £44,746.30 TOTAL AWARD £44,746.30 + £23,318.99 = £68,065.29 Approved by:[1]The Claimant's claim of unfair dismissal succeeded.[2]The Claimant’s claim for breach of contract by reason of the Respondent’s failure to pay him notice succeeded.[3]The Claimant’s claimed for a redundancy payment failed and was dismissed.[4]All of the Claimant’s remaining claims including claims for holiday pay were withdrawn and dismissed.[5]Remedy will be determined at a future date. Approved by: