PURSUANT TO APPLICATIONS UNDER RULE 37 The claimant’s claims for detriment under S.47B Employment Rights Act (‘ERA’) on the ground of alleged protected disclosures are struck out as the claims were presented are out of time under S.48 ERA and the Tribunal thus has no jurisdiction. The claim for unauthorised deductions under S.13 ERA is struck out as the claims were presented out of time under S.23 and the Tribunal thus has no jurisdiction. The respondent’s application to strike out the claim of unfair dismissal as having no reasonable prospects of success is refused. The respondent’s application to strike out the disability discrimination claims because of non-compliance with Orders and/or because it has no reasonable prospects of success is refused. The respondent’s application to strike out the race discrimination claim because it is out of time is refused.
REASONS
(1) By an application dated 1 March 2021, the respondent made several applications to strike out the claimant’s claims or to seek Deposit Orders in the alternative. 1 of 4(2) The applications were listed to be heard over 2 days at an Open Preliminary Hearing on 19 and 20 July 2021. For reasons explained in the Tribunal’s Orders and case management summary made on 19 July 2021, the Hearing did not proceed.(3) The parties were Ordered to provided and exchange written submissions in relation to the applications and it was agreed that the Tribunal would determine the application on the papers, without a further Hearing. This course of action was considered furtherance of the overriding objective to save expense and avoid delay, particularly to preserve the Full Merits Hearing listed in November 2021.(4) The Tribunal received the respondent’s written submissions dated 30 July 2021 and the claimant’s written submissions dated 10 August 2021 and the respondent’s further submissions dated 6 September 2021, all as Ordered. The Tribunal had already received the Open Preliminary Hearing Bundle (in readiness for the Hearing on 19 July 2021) running to 208 pages. Where a party referred to a document in that bundle which was relevant to the applications before the Tribunal, it was considered by the Tribunal. The Tribunal also considered the claimant’s statement dated 24 May 2021 served in connection with the Open Preliminary Hearing.(5) Early conciliation was commenced on 7 January 2020 and the EC certificate was issued on 4 February 2020. An ET1 was presented on 28 February 2020.(6) In relation to the protected disclosure detriment claims, the clamant had asserted that these occurred in February 2019 and June 2019 (being hit by a trolley and receiving a final written warning respectively). No date was offered in relation to the trolley incident. At the very latest, this was 13 March 2019 (although not asserted as the date by the claimant) based on the statement at page 150 of the bundle. The final written warning was dated 6 June 2019 (page 151-152).(7) The claimant has not asserted any reason why it was not reasonably practicable to present his claim within 3 months of either date, or even if the acts were asserted as a course of conduct extending over time, within 3 months of 6 June 2019. At the very latest, a claim ought to have presented on or before 5 September 2019 or early conciliation ought to have been commenced on or before 5 September 2019 to extend time. The test for reasonably practicable as described in Palmer and Saunders v Southend on Sea BC 1984 ICR 372 CA leads to the question as to whether it was reasonably feasible for the claimant to have presented the claim in time. In the absence of any explanation or submission from the claimant in support of this, the Tribunal could not conclude that it was not reasonably practicable for the protected disclosure claims to have been presented in time.(8) In relation to the unauthorised deductions claims, the claimant asserted in his further particulars that his claim was for deductions in 2017, 2018 and 2019. A month was not provided but the respondent has asserted (without contradiction or challenge) that the last in the alleged series was March 2019. Taking the 2 of 4 date as 31 March 2019 as the very latest, a claim ought to have presented on or before 29 June 2019 or early conciliation ought to have been commenced on or before 29 June 2019 to extend time. Pursuant to Palmer and for the same reasons regarding no explanation or submissions from the claimant in support, the Tribunal could not conclude that it was not reasonably practicable for the unauthorised deductions claims to be presented in time.(9) In relation to the unfair dismissal claim, the Tribunal did not consider it proportionate or commensurate to strike out the claim on the basis that it has no reasonable prospects of success without hearing evidence in the case and without the BHS v Burchell 1978 ICR 303 test being examined by the claimant and/or the Tribunal and for the Tribunal to assess, having regard to the evidence, whether or not the claimant’s dismissal was within the range of reasonable responses. It was also not clear to the Tribunal whether and if so to what extent, the claimant’s final written warning was taken into account in determining what sanction to apply to the claimant. The claimant’s witness statement raises several challenges in relation to the case against the claimant. That does not mean the claimant’s challenges are sufficiently meritorious or will be successful, rather that the respondent’s case against the claimant is entitled to be examined as set out herein.(10) In relation to the direct disability discrimination claim, the Tribunal concluded that there had been non-compliance with Tribunal Orders in relation to the claimant establishing whether he was a disabled person under S. 6 Equality Act 2010 (‘EqA’) and in relation to how disciplinary actions were detriments because of the claimant’s disability. In these circumstances however, it was premature, draconian and not proportionate to strike out the direct disability discrimination claim but this will be the subject of a further Order. In relation to the disability harassment claim, this will be the subject of a separate notice to show cause why the claim should not be struck out as, based on the asserted conduct alleged to relate to race (not disability), it has no reasonable prospect of success.(11) In relation to the race discrimination claims, the Tribunal concluded that there had been non-compliance with a Tribunal Order in relation to the provision of further particulars. In relation to time, the Tribunal would need to consider/hear the totality of the evidence in the exercise of its just and equitable discretion to hear claims out of time under S.123 EqA. Neither party had provided any information or submissions on the question of or the balance of prejudice. In comparison with the reasonably practicable discretion/test, this is a wider/broader discretion. In these circumstances, it was premature, draconian and not proportionate to strike out the race discrimination claims but this will be the subject of a further Order JUDGMENT PURSUANT TO RULE 37 AND 38 WITH REASONS The claimant’s claim for direct disability discrimination under S.13 Equality Act 2010 is dismissed because of non-compliance with the Unless Order dated and JUDGMENT The claim for unfair dismissal under S.94/98 Employment Rights Act 1996 is not well founded and is dismissed Reasons were given at the time and written reasons will not be provided unless they are asked for by a written request presented by any party within 14 days of the sending of this written record of the decision. JUDGMENT WITH REASONS The claim for unfair dismissal under S.94/98 Employment Rights Act 1996 is not well founded and is dismissed. Reasons[1]This was a claim for unfair dismissal. The claims for race discrimination, disability discrimination and detriment for alleged protected disclosures had been dismissed by earlier judgments.[2]The claimant appeared in person. A Malayalam interpreter had been booked for the final Hearing. Ms Vipinachandran was in attendance throughout.[3]The respondent appeared by Mr Sellwood, Counsel.[4]There was a bundle of documents running to 395 pages. The Tribunal heard from the claimant and Mr Albert Yip, Director for the respondent and Mr Junny Shek, Director.[5]The claimant remarked that he had only received the respondent’s witness statements at 4.00pm on Thursday 18 November 2021. This was by way of 1 of 11 simultaneous exchange as Ordered by the Tribunal in the light of on-going outstanding matters.[6]The claimant confirmed he had received a copy of the CCTV clip (of about 30 seconds) on 12 November 2021 which was presented during the disciplinary process. He also confirmed he had received the Bundle on 15 November 2021, also as Ordered.[7]The Tribunal was satisfied that the claimant was or should have been prepared on this basis. This was not the first occasion of the listing of his case for a Final Hearing. Although the claimant was not seeking a postponement it was mentioned to the parties that a re-listing would not be possible until 2023. The dismissal dates back to October 2019. That would be wholly unsatisfactory. There were numerous contemporaneous documents setting out the respondent’s case against the claimant. However, to mitigate against any possible disadvantage, the Tribunal proposed (and the respondent agreed) to reverse the usual order of evidence in an unfair dismissal hearing. This would mean the claimant would have additional time before questioning the respondent’s evidence.[8]The claimant indicated he had about 100 questions for Mr Yip and about 50 for Mr Shek. The Tribunal indicated, provisionally, that this seemed very excessive. The respondent said its cross examination of the claimant would last between 1.5 to 2 hours, but depending on the use/reliance on the interpreter, it may be slightly longer. Both parties were reminded expressly of the need for proportionality. The Tribunal indicated it would allow the claimant a similar cross examination time as that afforded to the respondent. That is what happened.[9]The Tribunal took care to explain the legal test to the claimant as a litigant in person, in particular, the Burchell test and the range of reasonable responses. It was explained that the Tribunal could not substitute its own view for that of the respondent.[10]Following the Tribunal’s engagement with the claimant during preliminary matters, the Tribunal felt that the claimant had good spoken and listening command of English as he engaged fully with the preliminary matters. However, it was not assumed this would continue to be the case or would always be the case especially when the claimant gave evidence. The claimant was asked to indicate any occasion he needed a question interpreted and this happened on a few occasions only.[11]The claimant was also asked about his voice impediment and it was agreed to allow regular breaks if this would be of assistance. The claimant said this would be fine and made no further requests for any adjustments. The Tribunal permitted a break after 45 minutes and stopped proceedings at 4.00pm on day 1. The claimant was also given the opportunity to reflect on the evidence at the end of day 2 before submissions on day 3. Findings of fact 2 of 11
Findings of fact
[12]The claimant was employed as freezer assistant. He was employed from 4 October 2004 to 18 October 2019.[13]The respondent is a retail and wholesale supplier of oriental food products with four Stores in the UK. The claimant was based at the Croydon Store. The respondent has stores in Birmingham, Manchester and Cricklewood too.[14]At an unspecified time in 2018, the claimant raised a concern about reduced price meat being set aside for staff purchase. Mr Yip said he monitored the situation after being informed of this and found no evidence of malpractice. This was set out in paragraph 4.3 of his witness statement. It was not challenged by the claimant. The Tribunal accepted this evidence.[15]The subject matter of the claimant’s initial whistleblowing claim (struck out) was in relation to a separate matter regarding his accident at work and PPE and potential fraud in 2017.[16]In April 2018, the respondent had cause to issue the clamant with a written warning. This was because the claimant was alleged to have used an abusive phrase – he had told a fellow employee to “shut the fuck up”.[17]This was the subject matter of a disciplinary process. The claimant accepted he had used the phrase. The claimant did not appeal the warning.[18]The warning was issued for 18 months. The respondent’s disciplinary policy says about written warnings that they will last for six months unless otherwise specified in the warning. The period of 18 months was specified. As there was no appeal against this warning, or response otherwise, the Tribunal did not find this to be manifestly inappropriate.[19]The claimant had made an allegation of racial abuse against Mr Andrews and Mr Prince on 3 February 2019 in relation to the alleged use of a racial slur. The claimant’s grievance about this was rejected on 28 April 2019 and not appealed by the claimant. The documentation about this was in the bundle but neither party placed specific reliance on the investigation content. It was not said by the claimant that the investigation was defective or if it was, in what respect.[20]The claimant also received a final written warning on 6 June 2019 (page 256). This followed allegations that the claimant had said to another employee Juanita Hope, that she was “ugly and smelly” and that “she should watch out” following an altercation on 13 March and 15 March 2019. The warning said the behaviour was threatening and disorderly and further that the claimant had used an aggravated tone. This was appealed but the appeal was unsuccessful (page 297). The claimant complained at the time (and during this Hearing) that the claimant had in fact been hit by her trolley. This appeared from the contemporaneous documentation to have been considered and rejected as a deliberate act but instead accidental.[21]The disciplinary hearing minutes of this meeting were on pages 239-246 and 251-255. The claimant was recorded has having agreed that his phrase “you 3 of 11 had better watch out” was strongly worded. The claimant, in oral testimony, disputed the context of what he had said and also said he had sought copies of the handwritten transcript but had not at any time sought to request an Order from the Tribunal for its production. Moreover, the claimant did not appear to have raised this at the time.[22]In July 2019, the respondent investigated an altercation between the claimant and Mr Darrell Andrews, a team leader. This was after Mr Andrews said he had challenged the claimant about the timings of taking his break.[23]It was alleged by both parties that they had been hit by the other. Statements were taken and an investigation was undertaken by Mr Michael Wong, a director at the Croydon store. His notes were at pages 269 to 282.[24]Following an investigation which involved meetings with the claimant, Mr Andrews, Mr Jordan Prince (a witness) and Mr Hemphill (to whom the incident had been reported), Mr Wong considered that the claimant had a case to answer for potential gross misconduct as the claimant was considered to have acted in an abusive and/or threatening way towards Mr Williams and insubordinately too. Mr Prince was a witness who had said the claimant had been the aggressor.[25]CCTV footage was viewed by Mr Wong which he considered showed the claimant continuously pointing and wagging his finger in the face of Mr Williams. He also considered the evidence showed that some contact was made as the claimant used his right elbow or forearm to brush Mr Andrews to one side (page 271). In Mr Prince’s interview, he said that the claimant had said to Mr Andrews “You don’t tell me what to do”. In Mr Andrews’ interview he said the claimant had said “you don’t speak to me”.[26]Mr Shek, from the Cricklewood store, was appointed as the disciplinary hearing officer. The hearing was to have taken place before Mr Shaun Cruikshank a manager at Croydon, but he had since left the business. An invitation letter had already been prepared and given to the claimant (dated 3 August 2019), but this was amended to explain that Mr Shek would now conduct the hearing and it was rescheduled too. It was rescheduled for 17 September by a recorded delivery letter dated 10 September 2019 (page 299). All documentation was enclosed and the claimant was informed of his right to be accompanied and was forewarned that dismissal was a possible outcome. Whilst it was noted the claimant was unfit for work (due to a leg injury), the respondent did not consider the claimant unfit to attend a disciplinary hearing but the claimant was invited to provide medical evidence to the contrary (page 300). The recorded delivery note with the claimant’s initials and some imprint of a signature, was at page 302 which the claimant asserted at the hearing was fabricated. It was not clear to the Tribunal who this allegation was aimed at and it was not understood to have been made in this way at the time. The Tribunal did not need to determine this as in fact the hearing was rearranged for 24 September 2019 by a letter sent by email and recorded delivery dated 18 September 2019 (page 303). 4 of 11[27]The charges against the claimant were aggressive and/or intimidating behaviour towards his team leader, including jabbing his finger at him and pushing him away and insubordination by saying “you don’t speak to me” “you don’t tell me what to do”. The respondent’s disciplinary procedure cites as examples of gross misconduct assaulting another employee and abusive or threatening behaviour (page 384).[28]The hearing on 24 September 2019 did not proceed as on 23 September at 23.02, the claimant emailed Mr Shek saying he was not fit to attend and also because he did not know who Mr Shek was. This was despite his letter being signed off as Director.[29]The hearing was rescheduled for 3 October 2019 by a letter sent by recorded delivery and email dated 26 September 2019 (page 306), it being impressed upon the claimant that if he was not fit to attend, medical evidence was required (page 307).[30]That hearing was postponed again following an exchange between Mr Shek and the claimant. The claimant objected to the HR note taker, citing some concern around confidentiality (but without providing further information about this) and said his leg injury prevented him from attending the hearing but he did not provide, as requested, medical evidence. He said a Company Doctor could be sent (to him) instead. He also referred to the earlier alleged racial abuse by Mr Andrews and Mr Prince about 5 months ago. In his response, Mr Shek said having spoken to Mr Wong, the allegations appeared to relate to 3 February 2019 which had been investigated by Mr Danny Raad (the claimant’s line manager) and an outcome to that grievance provided on 28 April 2019, rejecting it. Further, it was not appealed. He said he would appoint a different HR note taker, without any admission about the previous chosen HR note taker. For a final time, the disciplinary hearing was rescheduled to 17 October 2019 by a letter dated 10 October 2019 sent by email and recorded delivery (page 311).[31]The claimant sent a comprehensive email on 15 October 2019 setting out 20 numbered points to Mr Shek (pages 313 to 316). In summary, these ranged from statements regarding English being the claimant’s second language and about disability, general statements about discrimination and victimisation and the particular allegation against Mr Andrews and Mr Prince in February 2019. He also said he had complained about Mr Wong and wished to interview Mr Wong and record the interview. Further, Mr Hemphill’s statement was false and malicious. He requested a settee at a hearing to stretch his legs as he said he was unable to sit continuously for more than 2 minutes.[32]This email was responded to by Mr Shek on 16 October 2019. Mr Shek, in summary, said that the respondent had no fit note beyond 1 October 2019 (which had signed the claimant off work), there was no evidence of any allegations against Mr Wong and it was not part of the respondent’s policy to permit the claimant to conduct a recorded interview of him, that the claimant’s assertions about the case against him could be made at the hearing itself, repeated that the February grievance had provided an outcome and that the 5 of 11 claimant would be permitted to stand up and stretch as required and a sofa would be available too.[33]The claimant did not attend and the hearing and this went ahead in his absence. This was forewarned in the respondent’s letter of 26 September 2019 and in the letter of 16 October 2019, it was said the hearing would be going ahead as planned. Mr Shek dismissed the claimant deciding that the claimant was guilty as charged on both counts. This was after viewing the CCTV, all the statements and in particular the statement of Mr Hemphill who had also said the claimant was acting aggressively (page 270). The Tribunal noted that in his witness statement, Mr Shek took into consideration whether there was any tit for tat based on earlier complaints made by the claimant but resolved having regard to Mr Hemphill’s statement and the CCTV images he viewed himself, that this was not the case (pages 322-324). In determining the sanction, Mr Shek took into account that the claimant’s disciplinary record which included similar incidents and he also had regard to the absence of any remorse from the claimant.[34]In oral testimony, the claimant said he sent an email to the respondent on 17 October explaining he could not attend the hearing attaching medical evidence. He said he had done so upon receiving Mr Shek’s email of 16 October on 17 October 2019 due to an internet outage in his area. Mr Shek said he did not receive anything. There was nothing in the bundle. It was quite remarkable, that a document of such potential importance, had not been put before the Tribunal. On a balance of probabilities, the Tribunal found that Mr Shek did not read or receive any such email with attachment.[35]The claimant was afforded a right of appeal which he exercised before Mr Yip, another Director at the Croydon store. He had been held back in the event of an appeal. The Tribunal did not find such an arrangement to be improper or uncommon. It was not, without more, evidence of pre-judgment.[36]The claimant appealed on 24 October 2019 citing the decision to terminate his employment was unfair, wrong, too harsh, was discriminatory and misconceived (pages 330-335). He denied receiving the invitation letters of 5 August and 10 September 2019, he said he had been unable to provide details of his MRI scan, he questioned whether there had been a separate investigation carried out by Mr Shek and what his job title was.[37]To a significant extent the narrative in support of the appeal mirrored the claimant’s letter of 15 October 2019, though he also asked a series of questions about whether Mr Shek had carried out his own investigation largely in connection with allegations about discrimination.[38]The claimant was invited to an appeal hearing set for 11 November 2019. The claimant was informed of his right to be accompanied and that if any further investigation was required, it would be undertaken.[39]The appeal hearing minutes were at pages 341 – 355. The claimant’s accompanying companion was not present (due to the claimant’s error). The 6 of 11 claimant was offered the opportunity to bring another companion, but the claimant decided to proceed without one. An independent HR officer was present.[40]At the appeal hearing, the claimant raised several matters, including non-receipt of invitation letters and that the letter of 3 August 2019 was made up, that his dismissal was pre-determined as he had been taken off the company rotas prior to dismissal, Mr Wong putting words in the mouths of others and was biased as he had (previously) issued him a final warning, that the claimant had been given permission to take his break when he was questioned about it, the incident was Mr Andrews’ fault, the claimant used his hands when he became upset because of his severed nerve in his throat, the respondent was getting back at him because of his complaint about his accident at work in 2017, the company was aware of his disability, Mr Shek had not conducted a fair procedure or done his own investigation, the disciplinary action was influenced by the claimant having an accident at work on 11 August 2019 and Mr Hemphill’s statement was wrong and/or didn’t tell the complete picture.[41]The Tribunal noted that the claimant referred, at his appeal to an email he says he sent in on 17 October 2019, but surprisingly he did not provide the respondent with a copy. The discussion moved into a discussion about the rota at that point.[42]A decision was reserved for further investigation. The further points were set out by HR (page 356).[43]The claimant was sent minutes of the appeal hearing. He responded to them objecting to their accuracy in 3 respects but said he did not have time to make further changes (page 357). In oral testimony, the claimant maintained he had not received the minutes, alternatively that they had vanished from his email inbox. The Tribunal was satisfied that the former could not, obviously have been true; the latter might have been but that was not the fault of the respondent.[44]Although the claimant sent in a further document relating to his appeal, these were considered by Mr Yip to be similar to the grounds of appeal already advanced. This was at pages 367-369 and the Tribunal found Mr Yip’s assessment to be a fair assessment in this regard.[45]An appeal outcome was conveyed to the claimant on 6 December 2019 (page 371-375). It was rejected. Mr Yip rejected the 3 August letter was fabricated. He accepted it was incorrectly dated but that it had been given to the claimant by hand by Mr Imitiaz on 4 August 2019. Mr Yip rejected, broadly, that there was any proper explanation why he had been able to attend any or all of the 5 differently arranged disciplinary hearings or why he had not been able to provide medical evidence. Mr Yip rejected allegations of bias against Mr Wong or inconsistency in the evidence. Mr Wong had not, he said, influenced the evidence collected. There was no evidence that the claimant’s gestures were because of his severed nerve and in any event there was a difference between that and aggressively wagging a finger. Mr Yip did not consider the sanction too harsh having regard to his earlier warnings too. He referred to a similar sanction 7 of 11 in the Manchester store. The Tribunal was not taken to further evidence in this regard, but neither was it challenged. In relation to the staff rota, the employee who had said the claimant’s name had been removed denied saying this and further when this had happened. Applicable Law Unfair Dismissal – S.98 (2) & (4)
Applicable Law
[46]The respondent relied on S.98 (2) (b) ERA 1996 (conduct) in relation to its potentially fair reason for the claimant’s dismissal. The burden to show the reason rested with the respondent.[47]Subject to showing a reason, the Tribunal needed to consider whether the dismissal was fair or unfair, having regard to the reason shown by the respondent, whether the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissal which question shall be determined in accordance with equity and the substantial merits of the case. The test in this case is well settled from the British Home Stores v Burchell 1978 IRLR 379 case:• the respondent genuinely believed in the claimant’s misconduct• that belief was based on reasonable grounds• there was as much investigation as was reasonable[48]An employer who satisfies this test ‘must not be examined further’ (Burchell).[49]The range of reasonable responses applies both to the substantive decision to dismiss and to the procedure Sainsburys Supermarkets Ltd v Hitt 2002 EWCA Civ 1588 Conclusions and analysis Burchell[50]The Tribunal noted that Mr Shek was an independent person, detached from the Croydon Store. He was based at Cricklewood thus his appointment was, in the Tribunal’s conclusion, more objective. Although there had been other claims asserted in these proceedings (discrimination and whistleblowing) these had been struck out. Notwithstanding, the Tribunal considered whether Mr Shek’s thought process might have been motivated by such prohibited grounds, to undermine whether he held a genuine belief in the claimant’s misconduct and concluded that he did not. He investigated the concerns the claimant raised about the Mr Andrews and Mr Prince and was satisfied that the grievance had been rejected and had not been appealed. There were sweeping statements about general race discrimination against Indians but no prima facie evidence of the alleged ill treatment by others at the hands of Chinese employees of the respondent. Crucially, Mr Shek had formed his own view, having viewed the CCTV, that the claimant’s actions were culpable. By the time of the appeal 8 of 11 hearing before Mr Yip, the claimant’s allegations that Mr Yip had refused the claimant’s appeal because he had raised health and safety concerns was also addressed. These related to matters as long ago as 2017. Also, Mr Yip’s evidence in paragraph 4.3 was unchallenged. Further, in oral testimony, under cross examination albeit not in the claimant’s witness statement, Mr Yip explained an incident where an employee was believed to have been providing business sensitive information to a third party. It was in that context that Mr Yip had said employees were warned that such behaviour was ‘sackable’. The Tribunal concluded that Mr Yip’s evidence in this regard was credible. The Tribunal also remarks that as the claimant was on a written warning for 18 months for abusive behaviour (which was not appealed) at the time he was alleged to have re-offended in March 2019, if the claimant felt Mr Yip/the respondent was seeking retribution, it could have decided to dismiss the claimant in June 2019 rather than give a final written warning, but it did not do so.[51]The respondent had reasonable grounds upon which to hold its belief. There was an independent investigation carried out by Mr Wong. Statements were taken from the claimant and Mr Andrews and Mr Prince, the only witness to the incident. The respondent viewed the CCTV and also had regard to Mr Hemphill’s statement which provided, in the respondent’s view, some corroboration to the claimant’s likely behaviour. Mr Andrews was a team leader; thus the claimant was in a subordinate position to him. The Tribunal concluded that Mr Wong was entitled to summarise the investigation report in the way he did having regard to the statements of both Mr Andrews and Mr Prince who offered accounts of what the claimant said. The respondent did not consider this inconsistent, rather a cumulative account which it was entitled to do. The claimant placed reliance upon the respondent misunderstanding the context of what he had said – this was partially explored at the appeal hearing when the claimant explained he was given time to agree the minutes of an earlier meeting, but there was no discussion that the words used were different. The Tribunal considered if the respondent could or should have offered the claimant an interpreter, but this was not requested by the claimant and neither was this ever raised as an appeal ground. It was not a case where the respondent ought to have done so in any event.[52]The respondent undertook a reasonable investigation. The claimant placed reliance on the availability of other CCTV cameras but this was never put to the respondent’s witnesses in cross examination. The Tribunal asked the question instead and Mr Yip’s evidence was that based on the view of the incident in the CCTV that was used, no further CCTV evidence was required. The CCTV did not show, in the respondent’ view, that Mr Andrews had struck the claimant with a portable scanner. The claimant’s statement of the incident on page 273 of the bundle placed the alleged use of the portable scanner during the period of the CCTV clip used. In evidence, he said it had been earlier. It was not accepted that this was said by the claimant at the time. In reaching this conclusion, the Tribunal also had regard to the claimant’s statement in his investigation meeting at page 274 which suggested that it had not happened earlier. The claimant’s challenge was, essentially, that the clip did show him as the aggressor. The Tribunal viewed the clip and whilst directing itself that it was not for the Tribunal 9 of 11 to substitute its own view, the Tribunal concluded that it was open to the respondent to conclude that the claimant had acted in an abusive manner. The claimant also asserted, that the CCTV viewed in the Tribunal Hearing was fabricated i.e. not the version shown to him at the time. This was said more than once and the Tribunal took care to be sure this was being said. It was not said what had been manipulated. This allegation was considered to be made on the spot and was flatly rejected. The Tribunal was impressed by, rather than critical of, Mr Shek’s thorough consideration of the claimant’s questions about the case against him. In particular, Mr Shek’s response on 16 October to the claimant’s questions on 15 October 2017, which the claimant did receive, was not a basis to delay the hearing any further. On the contrary it was a comprehensive attempt to address the matters raised, anything outstanding could have been discussed at the hearing itself. This was a fifth rearrangement of the hearing. The respondent had shown significant forebearance. Range of Reasonable Responses[53]The Tribunal concluded that the respondent’s decision to dismiss the claimant was both procedurally and substantively within the range of reasonable responses. The respondent had arranged the disciplinary hearing on a number of occasions and even if the claimant had a legitimate excuse for not attending some of those hearings because he was not aware of the hearing, on his own case he was aware of at least 3 occasions of the hearing being scheduled to take place. The appeal hearing in any event cured any irregularity with regard to the case against the claimant. It did not matter that the hearing was said to have been a review rather than a re-hearing. It was comprehensive and thorough and in fact there were several avenues of investigation which were explored. The respondent had regard to the previous warnings, which were for similar conduct. It was entitled to do so. The Tribunal concluded that neither warning was manifestly inappropriate. The first written warning dated 12 April 2018 was imposed for a long period (18 months) but this was not against the wording of the policy. It was permissible to do so. It was a lower sanction than a final warning. This was not a case of the respondent dismissing the claimant cumulatively for an aggregation of misconduct but the regard was to the nature and fact of the warning rather than the currency of its existence. The warning had also not been appealed. The Tribunal noted that the respondent had factored in that the claimant had not expressed any remorse for his conduct. It was entitled to do so. To the extent that there was any procedural irregularity (though the Tribunal does not conclude there was), this was sufficiently cured by the appeal process. By that time, the claimant knew exactly the case against him, a Director presiding who had not previously been involved and an independent HR note taker.[54]In pursuance of the foregoing analysis, the Tribunal concluded the claimant was not unfairly dismissed.