Case No 2300635/2018Venue London SouthHearing 25 February 2019
Between
Mr M BahClaimantBerendsen UK LtdRespondent
Before
Employment Judge SiddallMs V Webb (instructed by Counsel) for respondentDate 9 June 2020
JUDGMENT
The decision of the tribunal is that the claim for unfair dismissal is not well founded and it does not succeed.
REASONS
[1]The Claimant was summarily dismissed for gross misconduct on 13 November 2017. He claims that he was unfairly dismissed. During the course of the hearing I heard evidence from the Claimant, from Mr Stuart Duell, Production Manager of the Respondent, Mr Laurence O’Donovan, previously a Production Manager of the Respondent and from Ms Enorr Erhuero, Head of HR, South East Region.[2]This case was listed to begin at 10am on 25 February. Having completed a preliminary hearing, I was ready to commence the case at approximately 11am. I was advised that the Claimant had not yet arrived. I brought the parties into the room. Ms Blatchford explained that she had heard from the Claimant who said that he was not feeling well, although he was starting to feel better, and that he was making his way to the Tribunal. She said he did not expect to arrive for around another two hours. She said that he was travelling to the tribunal office in Croydon from Euston.[3]Ms Blatchford applied for the case to be adjourned to another day, or adjourned until the Claimant arrived. Having considered the reasons provided for the Claimant’s non-attendance, I was not inclined to grant either adjournment. The Respondent’s witnesses were in attendance and ready to give evidence. Ms Blatchford did not argue that the Claimant was too unwell to attend at all, and he did not appear to have good grounds for not being at the Tribunal at 10am. I also considered rule 47 of the Employment Tribunal Rules of Procedure which deals with non-attendance, and took into account the fact that the Claimant was represented at the Tribunal and that Ms Blatchford would be able to represent his interests. I decided that the case should commence. I advised Ms Blatchford that the Claimant would have an additional period of time to get to the tribunal while I read through the statements and documents. I estimated that it should only take around an hour to travel from Euston. It was my hope that the Claimant would arrive by the time we were ready to hear evidence. If not, the Respondent’s witnesses would go first and Ms Blatchford could commence her cross examination of them in the hope that the Claimant would eventually arrive.[4]I broke at that point to consider the witness statements and documents. We reconvened at 11.55 by which time the Claimant had still not arrived. We proceeded to hear the evidence of Mr Duell. The Claimant eventually entered the Tribunal room at 12.50. He said that he had to get up very early to make his way to the Tribunal but that he had not been feeling well. I explained to him that he had arrived nearly 3 hours late and as a result we had started the case. His representative was cross examining the first witness and he would have an opportunity to speak to her over the lunch hour. We would hear his evidence in the afternoon. The case proceeded on that basis.[5]The facts I have found and the conclusions I have drawn from them are as follows.[6]The Respondent operates an industrial laundry at its Brixton site and the Claimant had worked there for many years. The Claimant made a request at very short notice to take four days holiday from Monday 26 June 2017. The Production Manager, Nigel Charles, turned down his request for Monday 26 June but granted him leave for 27, 28 and 29 June. The Claimant told Mr Charles that he needed the time off as he had an issue over deductions from his pay and had a court case that week and that a staff member called AW was assisting him. Mr Charles later checked with AW who said she had no idea what the Claimant was talking about. Mr Charles therefore advised Mr O’Donovan in an email dated 28 June that on the Claimant’s return to work he would investigate this issue.[7]Mr Charles’ email to Mr O’Donovan dated 3 July describes what happened when the Claimant returned to work. The Claimant did not return until 3 July 2017 and he was called into the office for a discussion with Mr Charles. Another member of staff JS was also in the office. Mr Charles’ email reports that on entering the office “Mr Bah was angry and very threatening towards myself and JS”. Mr Charles asked him to leave the office. He gave the Claimant five minutes to calm down but records that the Claimant then started to threaten an employee called CF “lifting his fist and aiming it at CF and I had to stand in front of him because I feared that he was going to hit CF”. Mr Charles records that the Claimant then started on another member of staff SU, who pushed a trolley of stock between himself and the Claimant. Mr Charles called security. At some point the Police arrived – the Claimant said that he called the Police, whilst Mr Charles states that he had no option but to call the Police himself to restrain the Claimant. It seems more likely than not that two calls to the Police were made. The Claimant was removed from the building.[8]Mr O’Donovan stated and I accept, that when he came into work on the morning of 3 July, he met with Mr Charles who reported to him what had happened. He later saw the email sent at 4.40am that morning.[9]Following this incident, the Claimant was suspended. Mr Stuart Duell was requested to carry out an investigation.[10]Mr Duell did not work on the nightshift so he asked the Transport Supervisor, CH to take statements from CF, SU and JS. The statements obtained which are at pages 60-62 of the Bundle are not particularly helpful. They are very short, do not specify the date the alleged actions took place and to some extent are inconsistent (although it is possible that all three employees were giving “snapshots” of what happened at different stages). The statement of CF states that the Claimant tried to hit him with a “dynamics server”. The statement of SU confirmed that he placed a cage between himself and the Claimant to protect himself. The statement of JS confirms that the Claimant had been angry and aggressive towards him in the office.[11]Having received these statements Mr Duell asked the Claimant to attend an investigation meeting with him on 10 July 2017. At the start of the meeting, the notes record that Mr Duell said “this is an investigation meeting to establish the facts about the incident on the 3rd July 2017 at 1.30am”. It notes that the Claimant had been removed by the Police because of his actions and behaviours towards the shift manager. I find that at this meeting, the Claimant was given a full opportunity to provide his version of what had happened on that night. He stated that Mr Charles, JS and CF had been abusive to him. He agreed that Mr Charles had stepped between him and CF but he says that this was “to separate him”.[12]I find that following that meeting the Claimant met with Mr Duell a second time to play a recording from his mobile phone about an exchange that he says took place between himself and JS. The Respondent does not agree that this exchange took place on the night in question, although the Claimant is adamant that it did. I find that as there seems to be agreement that aggressive words were spoken between JS and the Claimant on the night in question, it is possible that this is recording from the night of 3 July.[13]The recording was played in court. In addition, I have seen two transcripts of the recording, the first produced by the Respondent (which appears to be incomplete). The Claimant has also produced his own transcript. The recording is not completely clear and according to the Claimant’s own transcript, although he records JS swearing at him, the Claimant agrees that he said to JS “you go drink alcohol you smelly wazincol” (which he says means “idiot”). The Claimant also agrees that he said, “you are not being civilised, I will civilise you”.[14]Mr Duell took the view that it was not clear when this exchange had been recorded and he did not think it was relevant to the events of the 3rd July.[15]Following the investigatory meeting, Mr Duell viewed CCTV footage of what had happened in the packing area after the Claimant had left the office. He stated that the CCTV was clear, and he observed the Claimant assaulting CF. He did not see the Claimant trying to hit CF with a piece of equipment. He met with CF to clarify his evidence and show him the CCTV recording, and to see if it accorded with CF’s memory of what had happened that night. CF confirmed that it did, and he stated that he had been assaulted.[16]Mr Duell retained the CCTV evidence on his server but it was deleted following a computer upgrade. Ms Erhuero also had a copy of the CCTV footage on her phone which was used at the disciplinary hearing, but she deleted this after the disciplinary hearing had taken place. As a result, the CCTV evidence was not available to view at the Tribunal.[17]Having spoken to the Claimant and to CF and having viewed the CCTV evidence, Mr Duell decided there was a disciplinary case to answer and he referred the matter to Mr O’Donovan to conduct a disciplinary hearing.[18]The Respondent wrote to the Claimant on 22 September 2017 asking him to attend a disciplinary hearing on 29 September. This letter stated that he would face allegations “relating to your alleged violent misconduct on the Brixton site on 3 September 2017”. This was clearly an error. That error is not material as the letter did not reach the Claimant – it was posted to the wrong address.[19]When the Claimant did not attend the meeting on 29 September, it was rescheduled for 5 September. Unfortunately, this letter was also sent to the wrong address.[20]On 16 October, the Respondent wrote to the Claimant confirming that he had been summarily dismissed after he had failed to attend the second hearing. This letter was also sent to the wrong address.[21]On 1 November 2017, the Claimant turned up at the Respondent’s premises. He had noted that his pay had been stopped. He met with Ms Erhuero who called for Mr O’Donovan to join them. The Claimant was advised that he had been dismissed. Mr O’Donovan and Ms Erhuero assert that the Claimant became angry, and I accept their evidence. It would not be surprising for the Claimant to be angry if he had been dismissed without his knowledge and had suddenly found that his pay had ceased.[22]At this point the Respondent realised that they had been writing to the Claimant at the wrong address. They took steps to reinstate him and they wrote to him on 1 November 2017 calling him to a disciplinary hearing on Wednesday 6 November 2017. This letter also referred to an incident that had taken place on 3 September. In fact, the Respondent had got the date of the disciplinary hearing wrong as well – they meant 8 November 2017. This was corrected in a further letter addressed to the Claimant dated 7 November 2017, referring to the incident on 3 July 2017 and sent to the right address.[23]The Respondent states and I accept, that these letters included copies of the notes from the investigation meeting, the three statements from members of staff and the email dated 3 July from Mr Charles. The Claimant denies this. He says he did not receive the letters dated 1 and 7 November and did not receive any of the evidence before he turned up to the hearing. I do not accept this as the Claimant turned up to the disciplinary hearing on 8 November 2017. He would have had to have receive notification of when that hearing was due to take place. I also accept the evidence of Ms Erhuero that the Claimant brought a brown envelope with him containing the letters and the evidence he had been sent. The letters clearly refer to enclosures being included.[24]At the hearing, Mr O’Donovan took the Claimant through the evidence of what had happened on the night of 3 July, including the statements that had been obtained. He then showed the Claimant the CCTV evidence which the Claimant had not seen previously. He asked the Claimant for his comments.[25]Mr O’Donovan states that he saw from the CCTV that the Claimant had been trying to stop CF from recording events on his phone. He had tried to get the phone from CF and had hit him on the arm.[26]There are no notes available for the disciplinary hearing as these have been lost. That is extremely unfortunate. I accept that in broad terms the Respondent put the available evidence to the Claimant. I also accept that he was shown the CCTV evidence as this is not in dispute.[27]The Claimant said in his witness statement that the disciplinary hearing had taken place over 2 days. He said it had been adjourned during the first day because he had become very upset. However, during his evidence he was referred to these passages in his witness statement and he said that he got that wrong and that the meeting took place during one day.[28]I accept the evidence of Mr O’Donovan and Ms Erhuero that during the course of the hearing the Claimant became angry and abusive, especially after he had seen the CCTV evidence which he asserts is fake. He was eventually escorted from the premises by security.[29]The Respondent wrote to the Claimant on 13 November 2017 confirming his summary dismissal with effect from 13 November 2017.[30]In that letter Mr O’Donovan recalls that he had taken into account statements from CF, JS, SU and MC. He noted that there may have been confusion over the booking of annual leave but he states that “despite this I felt that your handling of the situation was unacceptable in the way in which you subsequently became both physically and verbally abusive”. This resulted in the Police having to be called. He did not accept that the Claimant had been provoked.[31]Mr O’Donovan also noted that during his suspension the Claimant had visited the Brixton site on 17 August in breach of instructions and that again the Police had to be called.[32]Mr O’Donovan concluded that the statements were consistent with the CCTV footage. He states that he had taken into account the Claimant’s length of service but had decided that the allegations were so serious that dismissal was an appropriate sanction.[33]Mr O’Donovan also referred to the fact that the Claimant had become abusive and aggressive during the disciplinary meeting.[34]There is another aspect to this matter. During the course of the investigation the Claimant asserted that JS and other employees at the Brixton site were requiring staff to give them money before allowing them to take holiday on the days they had booked. As a result of this allegation by the Claimant and others, the Respondent carried out an investigation. The Claimant was asked to attend a meeting to talk about what had been happening. I was advised by the Respondent and I accept that as a result of these allegations JS was dismissed from his employment.[35]The Claimant asserts that his dismissal was connected with the allegations made against JS and that the Respondent was determined to get rid of him.[36]I now go on to consider the evidence and the case put forward by the Claimant.[37]I have considered carefully the Claimant’s evidence that he was dismissed because of the corrupt behaviour that had been going on at the Brixton site involving JS and others.[38]I find that the Claimant has not shown that it was more likely than not that this was the reason for his dismissal. The allegations of corruption had been brought to the attention of the Respondent on 27 May 2017. The Claimant was not interviewed about this matter until 9 August 2017, well after the incident on 3 July. He does not suggest that he had himself made a complaint about JS earlier, resulting in JS seeking to victimise him or create circumstances in which he would be dismissed.[39]Secondly, I note that the complaint against the Claimant was initiated by Mr Charles. There is no allegation that Mr Charles was involved in the extortion. I note that the Claimant did not make any allegation against Mr Charles until the investigation meeting.[40]In all the circumstances I find that the reason for the Claimant’s dismissal related to his conduct on 3 July. An allegation of serious misconduct was made by Mr Charles on that date. I do not accept that this complaint was motivated by a wish for retribution upon the Claimant, in connection with the issues around booking holiday. I do accept that the corrupt practices going on around the booking of annual leave would have heightened the tension when the Claimant was called into the office to discuss the booking of his leave with Mr Charles. It therefore had an indirect effect on the events of 3 July, but was not the reason for the Claimant’s dismissal.[41]Misconduct is a potentially fair reason for dismissal. In accordance with the case of Burchell v British Home Stores, I must go into consider whether the Claimant had a genuine belief in the Claimant’s misconduct, based on reasonable grounds after a reasonable investigation.[42]I accept that both Mr O’Donovan and before him Mr Duell, had formed a genuine belief that the Claimant had acted aggressively and had sought to assault CF. I must consider whether they acted reasonably in deciding to dismiss him.[43]I turn first to the investigation carried out by Mr Duell. It is very unusual for an investigator not to interview witnesses directly himself. If Mr Duell had difficulties in interviewing witnesses because they worked on a night shift, it might have been more appropriate to appoint another investigator. The witness statements obtained from the three witnesses are poor and overall they are of limited value, although I note that the witness statements of CF and SU do provide some corroboration for the matters set out in Mr Charles’ statement.[44]Mr Duell gave the Claimant an appropriate opportunity to provide his account of what had happened on the 3rd July 2017. Following that meeting, Mr Duell carried out further investigation himself. He viewed the CCTV and formed the clear view that this demonstrated the Claimant acting aggressively and attempting to assault CF. However, he did not leave matters there. As I have said, the witness statement taken from CF is not very satisfactory. It was inconsistent with the CCTV evidence in that CF referred to the Claimant attempting to hit him with a piece of equipment. Mr Duell says and I accept that this was not shown on the CCTV. In order to address this inconsistency Mr Duell interviewed CF himself and obtained his confirmation that the CCTV was an accurate recording of what had happened.[45]The administration around the disciplinary process was extremely poor. Three letters went to the wrong address. These letters themselves contained errors and they referred to the wrong date on which the incident took place. In the overall scheme of things this is irrelevant as the Claimant did not receive those letters.[46]It is highly unfortunate that after the mistake had been realised, the letter sent to the Claimant inviting him to a further disciplinary hearing also contained errors. Again, it referred to the wrong date of incident and in this case, it referred to the wrong date for the disciplinary hearing. However, the Claimant was clearly aware that a disciplinary hearing was due to take place on 8 November as he turned up on that day. He was clear from his interview with Mr Duell that he was being questioned about events on the night of 3 July. Finally, the allegations of what had actually happened on that night are set out clearly in the email sent by Mr Charles, and are also referred to in the witness statements taken from the three other members of staff, albeit there are some issues with these statements. I find that the Claimant had the opportunity to consider this written evidence prior to the disciplinary hearing.[47]I have noted that the Claimant only had the opportunity to view the CCTV evidence when he came to the disciplinary hearing on 8 November 2017. Ms Erhuero states that the file was too large to send out and so it could not be delivered to the Claimant prior to the hearing. I accept that it is more difficult to provide a member of staff with video evidence than to provide them with documents. In this case the statement of Mr Charles set out clearly what the allegations against the Claimant were. The CCTV was confirmatory of that evidence. Although it would have been preferable for the Claimant to have been shown the CCTV evidence at any earlier stage, perhaps at a reconvened investigation meeting, in all the circumstances of this case I do not find that the Respondent acted unreasonably. I have noted also that the Claimant appears to have no reasonable answer to what he was shown on the CCTV, save to argue that it was fake. There is no evidence that the CCTV had been doctored and in any case, I note that CF had confirmed that it was an accurate recording of what had happened on the night in question.[48]In summary, the Respondent may be criticised for the way in which it conducted the disciplinary process in a number of respects. First, there was the failure of Mr Duell to interview witnesses directly and get full statements from them and second there were the errors in the letters sent out to the Claimant.[49]Case law has made clear that I must consider whether the process as a whole was unfair. Ms Webb refers me to the case of Shrestha v Genesis Housing Association [2015] IRLR 399 as authority for the principle that the investigation should be looked at as a whole when assessing the question of reasonableness. I adopt that approach here.[50]I take into account that Mr Duell was clear during the investigation meeting that the Claimant was being asked to answer allegations about his conduct on 3 July 2017. There can have been no doubt in the Claimant’s mind about what the investigation and disciplinary process was about.[51]The Claimant was provided with documentary in support of the reconvened disciplinary hearing which took place on the 8 November 2017, which again set out the allegations against him very clearly. Although an employer would usually be expected to provide copies of all evidence to a member of staff in advance of a disciplinary hearing, I accept that in this case there were problems in allowing the Claimant to view CCTV in advance. In the circumstances of this case it was reasonable to show him the CCTV at the disciplinary hearing and to give him a chance to comment upon it. Mr O’Donovan and Mr Duell had both formed the conclusion that the CCTV evidence showed him acting aggressively and even the Claimant does not contradict this, arguing instead that CCTV evidence was “fake”.[52]The errors in the letters are extremely regrettable and led to the process being extended far beyond what was necessary in the circumstances. In overall terms I find that this did not cause unfairness to the Claimant. As soon as the Respondent realised its error, he was reinstated and invited to a further disciplinary hearing at which the evidence was put to him in full and he was given a proper opportunity to comment. The Claimant’s conduct at the disciplinary hearing no doubt confirmed their conclusion that the Claimant had been aggressive and threatening on the 3rd July.[53]I accept that the recording of the exchange with JS may have taken place on 3 July. Unfortunately, this does not help the Claimant’s case. It is evidence of a heated altercation with another member of staff (whom he says is JS) in which both are being offensive to the other. Even if this recording had been supplied to the disciplinary hearing, it is likely that Mr O’Donovan would have concluded that it provided further evidence of the Claimant behaving inappropriately and aggressively.[54]In conclusion, despite the several errors made by the Respondent in the way in which they conducted this disciplinary process, I find that in overall terms the process was unfair. Both Mr Duell and Mr O’Donovan had a reasonable basis from which to conclude that the Claimant had behaved aggressively and in a threatening manner to other members of staff on the night of 3 July. Despite a number of defects, the overall investigation was fair and reasonable.[55]Was dismissal within the bands of reasonable responses? The Claimant was a long serving member of staff. It is not suggested that he had previous disciplinary warnings against him. However, violent or aggressive behaviour to other members of staff is potential gross misconduct. “Physical violence or bullying” is described as such at paragraph 1.44 of the Respondent’s disciplinary procedure. The letter of dismissal from Mr O’Donovan dated 13 November 2017 makes it clear that having found that the Claimant’s behaviour amounted to gross misconduct, he had gone on to consider what the sanction should be as a separate matter. He notes the Claimant’s long service but reaches the conclusion that in light of what had happened summary dismissal was the appropriate sanction. The letter of dismissal is a carefully considered document addressing the issues, noting his findings in relation to the allegations, and noting the reasons why he decided to summarily dismiss the Claimant. I find that decision was within the range of options available to the Respondent.[56]In all the circumstances the claim for unfair dismissal does not succeed and it is dismissed.[1]The Claimant was summarily dismissed for gross misconduct on 13 November 2017. He claimed that he was unfairly and wrongfully dismissed. Following a hearing on 26 February 2019 I determined that the claim for unfair dismissal did not succeed. Unfortunately I omitted to deal with the wrongful dismissal claim. The claimant appealed to the EAT who remitted the claim for wrongful dismissal back to this tribunal.[2]During the course of the hearing in February 2019 I had heard evidence from the Claimant, from Mr Stuart Duell, Production Manager of the Respondent, Mr Laurence O’Donovan, previously a Production Manager of the Respondent and from Ms Enorr Erhuero, Head of HR, South East Region.[3]As evidence in the case had already been heard, on 9 March 2020 I proposed to the parties that the wrongful dismissal claim should be dealt with by way of submissions only. The hearing of the claim was listed for 26 May 2020. In the event, an ‘in person’ hearing could not take place due to the restrictions imposed as a result of the coronavirus pandemic. I therefore proposed on 12 May 2020 that the hearing could take place by telephone in accordance with rule 46 of the Employment Tribunal Rules of Procedure. No objection to this proposal was received. Both representatives provided helpful written arguments in advance of the hearing and Mr Jones also put together a supplementary bundle of documents which included the EAT decision, grounds of appeal and correspondence from the tribunal.[4]I refer to the facts I found in my reserved judgment dated 9 March 2019 which sets out the history leading up to the claimant’s dismissal, and what happened after that. The claimant was accused of violent misconduct in relation to an incident during the night of 3 July 2017 at the respondent’s Brixton site. He had been removed from the premises following alleged verbal and physical abuse towards colleagues. He was dismissed on 13 November 2017. He asserts that his dismissal was wrongful, ie a breach of contract, and that he was entitled to his notice pay. I must therefore consider whether the claimant’s actions amounted to a repudiatory breach of contract which entitled the respondent to dismiss him without notice.[5]In my reserved judgment dated 9 March 2019 I applied the Burchell test and concluded that the respondent had a genuine belief that gross misconduct had occurred, based on reasonable grounds and after reasonable investigation. However Mr Robison submits and I accept that a different test applies when a claim for wrongful dismissal is being considered. The claim must be considered in the context of common law principles relevant to breach of contract. He refers me to the case of Rawson v Robert Norman Associates Ltd [2014] UKEAT/0199/13/RN. The judgment of Mr Justice Langstaff stresses that the question in a claim for wrongful dismissal is not what the employer believed to have happened but what, on a balance of probabilities, did happen. He makes the point that it is quite possible for a tribunal to find that an employee had been fairly dismissed in accordance with the Burchell test, but that his claim for wrongful dismissal should succeed because gross misconduct could not be proven. I remind myself of this important distinction as I consider the claim before me today.[6]I have reviewed the evidence about what happened on the night of 3 July alongside the notes of the evidence given at the tribunal hearing on 26 May and the facts I found as part of my decision on the unfair dismissal claim.[7]The respondent’s disciplinary procedure notes that ‘physical violence or bullying’ is an example of what will be categorised as gross misconduct.[8]The allegations against the claimant are recorded in an email that the production manager NC wrote at around 4.40am on 3 July 2017 which I deal with at paragraph 7 of my earlier judgment. NC states that he has written the email ‘because of [the claimant’s] threatening and intimidating behaviour towards myself and my staff members at 1.30am’. This email is significant because it is a near contemporaneous account of what NC says had occurred.[9]In the email NC describes the sequence of events that occurred that night. First, he sets out the background to this dispute. The claimant had asked for holiday at short notice around one week earlier. He had not been permitted to take all the holiday he asked for, and NC says that he became angry. The claimant returned to work on 3 July and NC called him into the office to discuss his holiday request. NC was apparently concerned about the reasons the claimant had given the previous week for requesting holiday at such short notice. NC states that the claimant became ‘angry and threatening’ towards himself and another employee, JS. The claimant abused JS and threatened to hit him. He told the claimant to leave the office and gave him five minutes to calm down. However NC goes on to report that when the claimant returned to the packing area he started to threaten a colleague, (whom I refer to in my judgment as ‘CF’) ‘lifting his fist and aiming it at [CF] and I had to stand in front of him because I feared he was going to hit [CF]’. He says that the claimant then started threatening another colleague, SU, who pushed a trolley of stock between himself and the claimant. NC called security. The police arrived at some point. As I make clear in paragraph 7 of my judgment, it is not clear whether they were responding to a call from the claimant or the respondent – possibly both. NC says that the claimant was removed from the premises by the police. The claimant does not dispute that he left the area with the police although he denies that he was removed by them. He agrees that the police attended, which he says was at his request. I accept that NC had also directed that the police be called.[10]A statement from JS dated 4 July says that the claimant had become angry and aggressive towards him and had threatened to hit him.[11]Statements were taken from CF and SU the same night. As I set out in my judgment, the statements are very short and not particularly helpful. However I have noted that CF’s statement says that the claimant was having an altercation with NC in the packing area. When CF started to record the exchange the claimant ‘became very aggressive towards me and attempted to uproot the dynamics server and tried to hit me with it’. He reported that NC ‘intervened to protect me’.[12]SU’s witness statement reports that the claimant ‘started shouting at me with an aggressive attitude’. He says that he moved a case between himself and the claimant in order to protect himself.[13]The claimant’s account of what had happened to him on the night of 3 July is found in the notes of the investigation meeting conducted by Mr Duell on 10 July 2017. He says that during the meeting in the office on 3 July he had become frustrated because he could not get his holiday sorted out. He said that JS started ‘cussing’ him but denies that he had used bad words back to him.[14]He agreed that CF had started filming him with his mobile phone. He said CF had told him that ‘if you talk to me again I am going to slap you’. He denied having any conversation with SU. He denied touching anyone at any point.[15]The next significant piece of evidence is a recording taken by the claimant on his phone which was played to the tribunal and which the claimant asserts is an exchange between himself and JS on the night of 3 July. Two transcripts of this recording were in the bundle, although the respondent’s transcript is incomplete. JS and the claimant can be heard being verbally abusive to each other. At paragraph 12 of my judgment I found that it was ‘possible’ that the recording was made on 3 July 2017.[16]There was history between the claimant and JS. I refer to this at paragraph 33 of my earlier judgment, and I mention it again here because it is an important part of Mr Robison’s argument that the claimant did not commit gross misconduct and that he had been ‘provoked’ into his actions on the night of 3 July. Essentially the claimant alleged that JS and others were abusing the holiday booking system and forcing staff to give them money before they would be allowed to take holiday on particular dates. The allegation had been brought to the respondent’s attention on 27 May 2017. The claimant raised this allegation in the investigation meeting on 10 July 2017 although he was not interviewed about it until 9 August 2017. Following the allegations, the respondent carried out an investigation and JS was dismissed. In my earlier judgment whilst I did not accept that the claimant’s dismissal was ‘retribution’ for making the allegation (because he did not raise the matter himself prior to 3 July 2017) I accepted that the allegations had an ‘indirect effect’ on the events of 3 July. I said this because, as NC made clear in his email of 3 July, the background to the verbal altercation that started in the office on that date was a dispute about the claimant’s holiday. I found that ‘the corrupt practices going on around the booking of annual leave would have heightened the tension when the claimant was called into the office to discuss the booking of his leave with [NC]’.[17]Finally there was CCTV evidence of what happened after the claimant left the office on the night of 3 July. This was not available for the tribunal hearing as it had previously been deleted. However both Mr Jones and Mr Robison accepted that there was contemporaneous evidence of what had been seen on the CCTV footage by Mr Duell who sent an email dated 12 July 2017 that said: ‘looking at the CCTV [claimant] assaulted [CF] by grabbing his arm so I really need the statement from him before I can progress to disciplinary..’ When shown the CCTV evidence at the disciplinary hearing on 8 November 2017 the claimant asserted that it had been faked.[18]Two events took place well after the incident of 3 July. At paragraph 20 I record that the respondent had purported to dismiss the claimant on 16 October 2017 after he had failed to attend a disciplinary hearing. It was later realised that the invitation letter and dismissal letter had been sent to the wrong address. When the claimant turned up at the site on 1 November 2017 to find out why his pay had stopped, he was told that he had been sacked. Understandably, he became angry.[19]I refer also to the letter of dismissal written by Mr O’Donovan on 13 November 2017 in which he noted that the claimant had become angry and abusive during the disciplinary hearing that he attended on 8 November 2017.[20]I mention these two incidents as it is clear that Mr O’Donovan took them into account when reaching his decision that the claimant’s behaviour had been physically and verbally abusive on 3 July. During the hearing on 26 May I asked Mr Jones whether he relied on these later incidents as part of the respondent’s case that gross misconduct had occurred, ie did he submit that the incidents were cumulative and that taken together they amounted to a repudiatory breach of conduct? Mr Jones submitted that they did but that in any event the respondent’s case was that there had been gross misconduct on 3 July on a ‘stand alone’ basis.[21]As I made clear in my earlier decision, there were significant problems with the investigation carried out by the respondent. The witness statements were not satisfactory. CCTV evidence was deleted (although available for the disciplinary hearing in November 2017). No minutes were taken of the disciplinary hearing on 8 November 2017 which led to the claimant’s dismissal, and a number of letters to him were either sent to the wrong address or contained inaccurate details. Those matters were all relevant to the claim for unfair dismissal.[22]In considering the claim for wrongful dismissal I have considered all the available evidence about what happened on the night of 3 July.[23]NC provided a near contemporaneous account of what he described as ‘threatening and intimidating behaviour’ that night. He provides the most comprehensive account of the sequence of events which resulted in the police being called and the claimant leaving the premises.[24]NC states that the claimant became angry and threatening in the office. I accept this evidence on the balance of probabilities. I find that it is more likely than not that a verbal altercation between the claimant and JS took place. This is supported by the statements of NC and JS. The claimant alleged (correctly it appears) that JS was engaging in corrupt practices around booking holidays. The claimant himself agrees that he became ‘frustrated’ because he says that he could not get a straight answer about his holiday arrangements. I am not able to establish whether the recording produced by the claimant is of the conversation between himself and JS in the office on the night of 3 July. As I have said it is possible that it took place at some point that night. Whenever it took place, the recording demonstrates that feelings between the claimant and JS were running very high. They can both be heard speaking aggressively and abusively to each other. It seems very likely to me that the claimant would have become aggressive and abusive to JS in the office if he felt that he was being challenged over his own holiday arrangements, as he could be heard speaking abusively to him on the recording.[25]Key sections of the next part of NC’s account are supported by the statements of CF and SU, even though these are very short. For example, NC reported that after the claimant left the office, he threatened [CF] and ‘I had to stand in front of him because I feared that he was going to hit [CF]’. CF agrees that his manager had to intervene to protect him.[26]NC also recorded that SU had to push a trolley of stock between himself and the claimant. In his witness statement, SU agreed that he ‘moved a case between myself and [the claimant] to protect myself’.[27]There are differences in the various accounts as to whether the claimant actually made contact with CF during their altercation. In his statement CF said that the claimant ‘attempted to uproot the dynamics server and tried to hit me with it’. NC said that the claimant lifted his fist and aimed it at [CF] and that ‘I feared he was going to hit [CF]’.[28]As I noted at paragraph 43 of my judgment, Mr Duell’s report on the CCTV footage is inconsistent with the statement made by CF who alleged that the claimant had tried to throw a dynamics server at him. Mr Duell made no mention of equipment but said that the CCTV showed that the claimant ‘assaulted [CF] by grabbing his arm…’.[29]Human memory can be unreliable, especially in the ‘heat of the moment’. Recorded evidence may be seen as more objective in the absence of evidence that it has been tampered with. During the course of the earlier tribunal hearing the claimant did not dispute Mr Duell’s account of what the CCTV showed but alleged that the footage had been ‘faked’. I found no evidence to support the claimant’s allegation and paragraph 46 of my judgment makes it clear that I did not accept it.[30]I note that after viewing the CCTV and noting the inconsistency, Mr Duell went back and interviewed CF again who agreed that the recording was accurate. I therefore give greater weight to Mr Duell’s record of what he saw on the CCTV footage than to CF’s witness statement of 4 July 2017 in which he said that the claimant had picked up a piece of equipment.[31]I conclude that there was no evidence to suggest that the claimant had tried to throw a piece of equipment at CF. Did an assault take place? The claimant and CF both agreed that CF had taken out his mobile phone to film the claimant. NC says that the claimant raised his fist to CF and Mr Duell formed the impression that the claimant had assaulted CF by grabbing his arm. I was not able to view the CCTV myself in order to determine whether it clearly shows contact or not. NC does not state that there was an actual assault but rather that he feared that the claimant was ‘going to hit [CF]’. The claimant’s statement to Mr Duell confirms that CF was filming him but denies that there was any contact. In the absence of the CCTV evidence I am not able to conclude that it is more likely than not that the claimant grabbed CF’s arm as the claimant denies it and NC does not go this far. Taking all the evidence into account I find on the balance of probabilities that the claimant tried to stop CF from filming him and that he raised his arm towards CF’s arm for this reason. On the basis of the accounts of the claimant, NC, CF and the CCTV report of Mr Duell I find that it is more likely than not that there was at least an attempted assault.[32]I also accept that it is more likely than not that the claimant behaved in a threatening manner to SU, on the basis that both he and NC report that he had to move a case of stock between them to protect himself. The statements of NC and SU support each other in this respect and I therefore prefer this evidence to that of the claimant who told Mr Duell at the investigatory meeting that he had not spoken to SU.[33]In summary having considered all the evidence relating to the events of 3 July I find it more likely than not that an aggressive verbal altercation took place in the office that night, mainly between the claimant and JS, whom the claimant later accused of behaving fraudulently. The claimant left the area, but the argument did not end there. The claimant then became angry with CF who was trying to film him with his mobile phone. He appears to have raised his arm towards CF, most probably to try and grab his phone and NC had to get between them. The claimant then continued to behave aggressively towards another colleague SU, who pushed a case of stock between them to protect himself. Mr Jones points out that the incident took place within an industrial setting – a busy laundry area with machinery and with stock being moved around.[34]I do not give significant weight to the respondent’s assertions that the claimant behaved aggressively on two further occasions: first when he was told that he had been dismissed on 1 November 2017 and secondly when he attended the disciplinary hearing on 8 November 2017 and was shown the CCTV evidence. It is clear that the allegations which the claimant faced before he was dismissed related to his conduct on 3 July 2017. The dismissal letter suggests that Mr O’Donovan viewed the later incidents of aggressive behaviour as providing corroboration for the allegations of aggressive behaviour on 3 July. In considering the claim for wrongful dismissal, I have focussed on the alleged misconduct which took place on that earlier occasion.[35]In his submission Mr Robison accepts that there may have been a degree of frustration on the part of the claimant but he points to the discrepancies in the evidence. He also suggests that there was evidence that the claimant was provoked, and that this should be taken into account when considering whether he committed gross misconduct. He places weight upon the transcript of the telephone conversation which the claimant says took place on 3 July 2017.[36]As I have said, it is not possible to determine exactly when that conversation took place. In considering the argument put forward by Mr Robison, I shall take the claimant’s case at its highest and assume that the recorded conversation took place on 3 July, either during the altercation in the office or soon afterwards.[37]Neither the transcript nor the recording itself contain any reference to the claimant’s allegation that JS had been behaving corruptly over holiday arrangements. The transcript at page 78a of the bundle records JS and the claimant being gratuitously offensive and abusive to each other. I accept that even if this was not a recording of the actual conversation in the office that night that it is more likely than not that a very similar conversation took place. I also accept that the context, of the claimant being called in to discuss his holiday arrangements, and the background of staff being forced to pay to get their holiday booked, provides some explanation as to why the claimant became so angry on the night in question.[38]That said, there is no evidence to suggest that the claimant said to NC that he was getting angry because of what JS was up to. He only mentioned this when called to an investigation meeting on 10 July.[39]Whatever the background, the evidence makes it clear that the dispute did not end when the claimant left the office and that he remained angry. At the very least, he lunged towards a colleague who was filming what was going on and his manager had to step between them; and he then went on to threaten a third person, who does not appear to have otherwise been involved in the discussion at all and who pushed a physical barrier between himself and the claimant to protect himself.[40]Whilst therefore I can accept that the claimant may have had some justification for being angry with JS, he did not report his concerns to NC or explain why he was feeling so frustrated. In addition, the matter did not end with the altercation between JS and the claimant in the office. It continued into the packing area where the claimant continued to be angry and aggressive towards two colleagues who had no part in the initial dispute, and to whom he behaved in a physically threatening manner. Any provocation supplied by JS did not excuse the claimant’s conduct towards CF and SU. He displayed conduct in the packing area which was of such concern that security and the police were both called.[41]I conclude on the balance of probabilities that the claimant was both verbally and physically aggressive on the night of 3 July 2017 and that his conduct cannot be sufficiently excused by the history of his relationship with JS or with any corrupt practices that were occurring within the respondent’s operations that were addressed later. Physical violence is labelled as an offence of gross misconduct under the respondent’s disciplinary procedure, and is in any event usually treated as such at common law. In all the circumstances I find that the claimant’s conduct amounted to a repudiatory breach of his contract of employment which entitled the respondent to dismiss him without notice.[42]In all the circumstances the claim for wrongful dismissal does not succeed and it is dismissed.