Mr S Leigh v London and South Eastern Railway Ltd and RMT: 2301745/2016
EMPLOYMENT TRIBUNALS
Case No 2301745/2016
Between
Mr S LeighClaimantLondon and South Eastern Railway Ltd and RMTRespondent
Before
Employment Judge SelfDate 13 March 2017
JUDGMENT
[1]The Claims of disability discrimination, unfair dismissal and wrongful dismissal against the 1st Respondent are all struck out as having no reasonable prospect of success.[2]The Claim for unlawful deduction of wages against the 1st Respondent is dismissed upon withdrawal.[3]The Claim for Holiday pay shall be listed for a hearing before a Judge alone with a time estimate of 2 hours.[4]The Claims against the Second Respondent are dismissed upon withdrawal.
REASONS
[1]By a Claim Form received on 22 August 2016 the Claimant asserts that he was unfairly dismissed, wrongfully dismissed, discriminated against on the grounds of his disability, is owed holiday pay and arrears of pay and that he is due further unparticularised “other payments” from the 1st Respondent (hereafter the Respondent).[2]The 2nd Respondent were joined on what appeared to be opaque grounds and the Claimant has volunteered today that he does not wish to proceed against them and the Claim against them is dismissed upon his withdrawal. In reality as there was never an ACAS Early Conciliation Certificate in the 2nd Respondent’s name the Claim should never have been accepted in any event.[3]The Claimant gives little away in his Claim Form as to precisely, or indeed generally, how his Claim is formulated. A Case Management hearing was listed and the Claimant did not attend it. The Claimant was ordered to particularise his disability claim and the instructions as to how he should do that were made quite clear. His response to that order which he submitted on 2 December does not comply with those instructions and is simply an outline of a series of long standing grievances that he has with the Respondent. As at the start of this hearing the basis of the Claimant’s disability Claim remained a mystery.[4]On attendance today I set the Claimant the task of setting out his discrimination claims as per the order of EJ Freer. It was only at the stage where there was absolute clarity in respect of his claims that consideration could be given to the applications before me to today which was to consider striking out the claims or making deposit orders following a consideration of the merit of the claims pursuant to Rules 37 and 39 of the Tribunal Rules of Procedure.[5]The Claimant was given such time as he required to place the factual basis of his discrimination claims within the template suggested. He produced eight claims. Six of those claims related to matters that had taken place in 2016, one in July 2015 and one in October 2013. So far as the two earlier claims were concerned I asked the Claimant about them to see if they could in any way be described as acts extending over a period when taken in conjunction with the 2016 claims and in particular the claims that were in time.[6]The first claim in October 2013 involved the Claimant being warned by a certain manager that he was on a list of people a certain other manager wished to be rid of. The second claim involved the Claimant being the subject of a final warning in respect of his sickness absence in July 2015 which was overturned on appeal on 1 September 2015.[7]I could not see that either matter bore any relevance or link to the matters complained of in 2016 and viewed both as stand-alone incidents for which the statutory time limit had long expired. Due to the length of time since they had taken place and the clear prejudice to the Respondent and in the absence, despite prompting of any argument or points in support of why it might be just and equitable to extend time I determined that neither of those heads of claim had any reasonable prospect of success in that they would inevitably fall outside the statutory limitation period and time would not be extended. Alternatively they were dismissed for the want of jurisdiction in relation to time limit itself.[8]The six remaining claims were detailed to me as follows: a) Between January and 1 March 2016 Pat Walsh discriminated against the Claimant by refusing the Claimant an interview as per the medical capabilities arrangements. b) Between January and 1 March 2016 Michelle Harris discriminated against the Claimant by failing to offer the Claimant a job as per the medical capabilities arrangements. c) On 4 May 2016 the Respondent discriminated against the Claimant by not offering him a job at Friars Bridge Court as per the medical capabilities arrangements. d) Between 1 March 2016 and 30 June 2016 Louise Barham discriminated against the Claimant by failing to get the Claimant alternative employment as per the medical capabilities arrangements. e) On 28 June Paul Randall discriminated against the Claimant by dismissing him. f) Between July and August 2016 Paul Randall discriminated against the Claimant by not responding to the Claimant’s appeal against his dismissal.[9]Those claims were put on three separate bases pursuant to sections 13, 15 and 26 of the Equality Act 2010.[10]The ACAS EC Certificate records that the conciliation period lasted between 9 August and 12 August. In those circumstances the last day for any alleged acts of discrimination that were in time was 9 May 2016. Clearly the allegations set out at 8e and 8f are in time.[11]The allegations at 8a to 8d all relate to alleged failures relating to the redeployment of the Claimant via the medical capabilities arrangements. Despite the temporal spread that the Claimant himself has set out a vital fact is that the Claimant was suspended on misconduct grounds on 5 May 2016 at which time any active obligation to consider medical redeployment ended. As a consequence of that the last date of discrimination pursuant to the medical capabilities arrangements would have been 5 May 2016 and so 8a to 8d inclusive have not been brought within the statutory time limit unless they can be linked as being acts extending over a period. I will return to these in due course.[12]On 5 May 2016 the Claimant was called to a fact finding meeting to discuss the fact that the Claimant had been attending the criminal courts as a Defendant. The Claimant explained it had been going on since the end of 2015 and he had made a number of court appearances. He stated that it was for theft but he had not been charged or arrested. The Claimant was asked whether he was aware of the Respondent’s Code of Conduct wherein he was obliged to inform them if he was charged by the police and/or gained a criminal conviction. The Claimant advised that he was aware of that but that he had not been charged and hoped that it would all be over on 25 May. The Claimant was suspended.[13]A search of records by the Respondent disclosed that the Claimant had appeared at the Crown Court on 16 October 2015, 21 December 2015 and was the subject of a two day trial on 26 and 27 April 2016 at which the Claimant was found guilty of burglary. There would in all likelihood have been a t least one previous hearing at the Magistrates Court. The information given by the Claimant at the fact find was at best wholly inaccurate and at worst dishonest. A credible and exculpatory reason for the Claimant furnishing the Respondent with the correct information was not advanced at the time nor at this hearing and I find that there was no such reason for the Claimant’s conduct.[14]From this information it was clear that the Claimant had, contrary to his assertions at the fact find meeting, not only been charged but had actually been convicted of an offence of dishonesty after a jury trial and the only thing left to do was the sentencing process at the end of May. Leaving aside the clear breaches of the Respondent’s Code of Conduct there were also issues of honesty relating to the answers that the Claimant had given within the fact find meeting. It should be noted that the Claimant’s role within the Respondent was as a conductor which included cash handling responsibilities.[15]The disciplinary hearing was held on 28 June and I have seen a copy of the transcript to which no objection was taken. The claimant was late attending and failed to communicate his lateness in advance. He was given time to speak with his Union rep.[16]The Claimant confirmed in the hearing that he had been first to the police station in July 2015 and then was charged in October 2015 but it never seemed to be the right time to tell his managers. He confirmed that he realised that he should have told them and repeated that on a number of occasions. The Claimant had to be prompted by his Union representative to apologise and ask for leniency on the basis of his contrition.[17]The Claimant was dismissed for gross misconduct. The Code of Conduct itself and the standards therein were a requirement for the Claimant to meet under his terms and conditions of employment. The Claimant knew of the Code and its contents or had signed to say he knew and it was clearly stated that breach of the rules might be regarded as gross misconduct. In this case there was a gross breach by the Claimant on account of his failure to inform them of being charged and/or convicted which was a “deliberate or negligent contravention of the Rules” and /or “an offence that broke the necessary trust that existed between employer and employee”. The words in quotes are examples of what might constitute gross misconduct in the Handbook.[18]The Claimant appealed and set out five grounds which were as follows: a) Not being given time to read the codes of conduct before the fact find; b) Insufficient time to talk to his rep before he hearing; c) Lack of trust and confidence in management since September 2013; d) Being treated differently to a similar situation involving another conductor; e) One of the reasons for dismissal being that he had not shown any remorse.[19]An appeal was set for 1 August and the Claimant did not attend. Postage records confirmed that the correct information was sent on a second attempt. I was satisfied that the Claimant could have attended and argued his appeal had he so wanted.[20]During the course of the hearing I had written and oral submissions from the Respondent’s representative and I had oral representations from the Claimant. I encouraged him to provide for me the basis of his case and to tell me what he would be saying if the Case went to a final hearing. I am quite clear that the Claimant had every opportunity to disclose everything that he wanted to or could do about the issues in the case and how he would demonstrate his claims at trial.[21]Rule 37 of Schedule 1 the 2013 Employment Tribunal Rules of Procedure provides various grounds upon which a Claim can be struck out. In this case the Respondent seeks to rely upon the ground that the claims have no reasonable prospects of success. Rule 39 is the mechanism whereby a Deposit Order can be made as a condition precedent of the Claim proceeding if the Claim has little reasonable prospect of success.[22]I am very mindful of the fact sensitive nature of employment tribunal claims and the dangers that are inherent in disposing of claims prior to there being a full consideration of them under evidence that is tested under oath. That is particularly so in discrimination cases. I am aware and have taken into account the dicta in Anyanwu (2001) ICR 391 and also the guidance by Lady Smith in Balls (2011) IRLR 217. I have considered all information that has been placed before me and also considered anything of relevance on the Tribunal file.[23]I am quite satisfied that all of the information and evidence that the Claimant would wish to provide to me if this matter went to trial is before me today. I have seen notes of the fact find meeting and the disciplinary hearing and relevant documents surrounding the same. The facts are stark. The Claimant was subject to a Code of Conduct which he was aware of. In any event he should have known that he needed to tell his employers that he had been charged and/or convicted of a serious criminal offence of dishonesty especially as he was in a position of trust. He failed to do so over a long period and could give no adequate explanation as to why he did not nor did he show any remorse himself as to what had taken place as his Union official had to prompt him. A reasonable conclusion was that the Claimant had hoped that he would be acquitted and the whole matter would never come to light. The non-disclosure went to the very heart of the trust and confidence the Respondent could have in the employee.[24]There was no other explanation proffered for why the Claimant was dismissed and so there is a potentially fair reason for dismissal made out and it was inevitable that when matters came to light vis a vis the Claimant’s conduct that it would be investigated and on the admitted facts it would constitute gross misconduct. I can see no answer as to why the Respondent would not have a genuine belief of reasonable grounds after a reasonable investigation when the Claimant admitted his defaults in full.[25]From a procedural perspective the Claimant was given every opportunity to put forward mitigation and /or anything else in relation to the allegations. There were no defects in the process identified by the Claimant when I asked him today which were deemed to be unfair. Being generous to the Claimant and considering the matters he raised on the appeal I cannot see that even taken at their height the matters detailed at 18a, b, c and e would be capable of rendering the dismissal unfair. Having seen the notes 18b does not appear to be correct as the Claimant was given ample time to speak to his rep upon his late arrival and no postponement was sought.[26]I made further enquiries about 18d of the Claimant today. He told me that another employee was charged with threats to kill but he was not dismissed. Non- comparative treatment can lead to a finding of unfair dismissal if the circumstances are genuinely similar. From what the Claimant told me today the circumstances were not. Having said that the Claimant’s conduct was such a flagrant breach of the Code of Conduct that it is to my mind inconceivable that any Tribunal would find that the decision to dismiss was outside of a reasonable band of responses taking all matters into account. Accordingly I consider that the unfair dismissal claim has no reasonable prospects of success and I strike the claim out pursuant to Rule 37(1)(a) of the Tribunal Rules 2013.[27]The Claimant also seeks his notice pay in that he was summarily dismissed. That is, of course, a different test to the band of reasonable responses test used when considering claims of unfair dismissal. In this case the Claimant would be entitled to his notice pay unless the respondent can demonstrate that summary dismissal was appropriate on account of the Claimant’s repudiatory breach of contract. When considering such matters I have to be satisfied that the Claimant conducted the misconduct alleged and that it was sufficiently serious to amount to a repudiation of the contract.[28]In this case I am satisfied that I have all the information before me to consider the merits of the Claim and that sworn evidence would not take matters any further. There is an admitted breach of the Code of Conduct and an egregious one at that. That Code of Conduct is part of the terms and conditions and it is clearly flagged as potentially being gross misconduct. It also amounts to a serious breach of the implied term of trust and confidence which would be repudiatory in nature. In those circumstances I am quite satisfied that the Claimant would not be able to argue that the decision to dismiss summarily was in any way flawed and I strike the Claim out as having no reasonable prospect of success on the information I have before me and there is no prospect of anything else arising that might change matters.[29]I turn now to the allegations remaining of disability discrimination. I have seen notes of a medical Capability meeting on 1 March 2016 and no issue was taken as their accuracy. The Claimant is present with his Trade Union representative and also present is Louise Barham and Terry Phillips. The meeting reflects an appropriate and constructive discussion as to getting the Claimant back into the work place in either his role as a conductor or in another role. Louise Barham had provided interview skills training and there was to be a 16 week period where roles were looked at with the Claimant getting priority with redeployment. Mr Phillips is constructive and offers his assistance too.[30]There is no indication within this meeting of anything other than the Respondent utilising proper processes to get the Claimant back into the workplace. There is no negativity at all toward the Claimant and the Claimant makes no assertion that he has been discriminated against because of his disability or that other things need to be done to support him. Further the job roles at 8a and 8b are referred to and it is pointed out that the Claimant was very late to both of the interviews (45 and 30 minutes respectively) which had adversely affected the Claimant’s application.[31]There was a further meeting on 12 April in which it was confirmed that the Claimant had been given a list of potential vacancies but that he had not applied for anything. Notwithstanding this the Claimant is encouraged by Mr Phillips and Ms Barham to apply and to gain experience. On 4 May after the Claimant had been interviewed for a role in Customer Relations he wrote an email thanking Ms Barham and others for all their help and assistance saying that they had gone “above and beyond to assist”.[32]I offered the Claimant the opportunity to explain why it was he thought that the Respondent was discriminating against him in relation to the remaining matters. In short he could not explain it. He was unable to indicate to me any issue that linked his failures to get roles to his disability. In fact he actually linked it to long standing personality issues with managers and accordingly not linked to his medical condition at all.[33]I was satisfied that I had seen the relevant documentation and that I had been told the basis upon which the Claimant was putting forward his claims and that at trial the position would be no different. I took into account that there was no link at all to what was clearly a conduct dismissal and that accordingly there was no act extending over a period and so the claims 8a to 8d inclusive would all be out of time. I also considered the clear help and assistance that had been acknowledged by the Claimant of his managers over that time and the fact that he had been exceptionally late without good reason for two of the interviews. When considering all of these matters and taking the Claimant’s claims at their height I was quite satisfied that there was no reasonable prospect that these claims could succeed at trial and that I should strike the same out. I considered it highly unlikely that time would be extended and certainly when asked the Claimant did not provide any reasoning and in any event even of that hurdle were to be overcome I was satisfied on all that I had, taking the Claimant’s assertions unsupported by any evidence as they were, that there would be no reasonable prospect of success in relation to those claims.[34]Further so far as matters at 8e and 8f I was satisfied that there was no reasonable basis for suggesting that the dismissal and appeal process which was clearly solely in relation to the conduct issues had any link with the Claimant’s disability as all and there were no prospects of success in that case either.[35]The Claimant indicated that he was withdrawing the unlawful deduction of wages claim but that he considered that he was due holiday pay that had accrued during his sickness absence. Clearly that was a matter which I had no information on and so that sole matter should proceed to a hearing. Employment Judge Self 13th March 2017 cs THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE SELF (sitting alone) BETWEEN: STUART LEIGH Claimant AND(1) LONDON AND SOUTH EASTERN RAILWAY LIMITED(2) RMT ON: 13 January 2017 Appearances For Claimant: In Person For Respondent: Mr P Lockley - Counsel[1]The Claims of disability discrimination, unfair dismissal and wrongful dismissal against the 1st Respondent are all struck out as having no reasonable prospect of success.[2]The Claim for unlawful deduction of wages against the 1st Respondent is dismissed upon withdrawal.[3]The Claim for Holiday pay shall be listed for a hearing before a Judge alone with a time estimate of 2 hours.[4]The Claims against the Second Respondent are dismissed upon withdrawal.[1]By a Claim Form received on 22 August 2016 the Claimant asserts that he was unfairly dismissed, wrongfully dismissed, discriminated against on the grounds of his disability, is owed holiday pay and arrears of pay and that he is due further unparticularised “other payments” from the 1st Respondent (hereafter the Respondent).[2]The 2nd Respondent were joined on what appeared to be opaque grounds and the Claimant has volunteered today that he does not wish to proceed against them and the Claim against them is dismissed upon his withdrawal. In reality as there was never an ACAS Early Conciliation Certificate in the 2nd Respondent’s name the Claim should never have been accepted in any event.[3]The Claimant gives little away in his Claim Form as to precisely, or indeed generally, how his Claim is formulated. A Case Management hearing was listed and the Claimant did not attend it. The Claimant was ordered to particularise his disability claim and the instructions as to how he should do that were made quite clear. His response to that order which he submitted on 2 December does not comply with those instructions and is simply an outline of a series of long standing grievances that he has with the Respondent. As at the start of this hearing the basis of the Claimant’s disability Claim remained a mystery.[4]On attendance today I set the Claimant the task of setting out his discrimination claims as per the order of EJ Freer. It was only at the stage where there was absolute clarity in respect of his claims that consideration could be given to the applications before me to today which was to consider striking out the claims or making deposit orders following a consideration of the merit of the claims pursuant to Rules 37 and 39 of the Tribunal Rules of Procedure.[5]The Claimant was given such time as he required to place the factual basis of his discrimination claims within the template suggested. He produced eight claims. Six of those claims related to matters that had taken place in 2016, one in July 2015 and one in October 2013. So far as the two earlier claims were concerned I asked the Claimant about them to see if they could in any way be described as acts extending over a period when taken in conjunction with the 2016 claims and in particular the claims that were in time.[6]The first claim in October 2013 involved the Claimant being warned by a certain manager that he was on a list of people a certain other manager wished to be rid of. The second claim involved the Claimant being the subject of a final warning in respect of his sickness absence in July 2015 which was overturned on appeal on 1 September 2015.[7]I could not see that either matter bore any relevance or link to the matters complained of in 2016 and viewed both as stand-alone incidents for which the statutory time limit had long expired. Due to the length of time since they had taken place and the clear prejudice to the Respondent and in the absence, despite prompting of any argument or points in support of why it might be just and equitable to extend time I determined that neither of those heads of claim had any reasonable prospect of success in that they would inevitably fall outside the statutory limitation period and time would not be extended. Alternatively they were dismissed for the want of jurisdiction in relation to time limit itself.[8]The six remaining claims were detailed to me as follows: a) Between January and 1 March 2016 Pat Walsh discriminated against the Claimant by refusing the Claimant an interview as per the medical capabilities arrangements. b) Between January and 1 March 2016 Michelle Harris discriminated against the Claimant by failing to offer the Claimant a job as per the medical capabilities arrangements. c) On 4 May 2016 the Respondent discriminated against the Claimant by not offering him a job at Friars Bridge Court as per the medical capabilities arrangements. d) Between 1 March 2016 and 30 June 2016 Louise Barham discriminated against the Claimant by failing to get the Claimant alternative employment as per the medical capabilities arrangements. e) On 28 June Paul Randall discriminated against the Claimant by dismissing him. f) Between July and August 2016 Paul Randall discriminated against the Claimant by not responding to the Claimant’s appeal against his dismissal.[9]Those claims were put on three separate bases pursuant to sections 13, 15 and 26 of the Equality Act 2010.[10]The ACAS EC Certificate records that the conciliation period lasted between 9 August and 12 August. In those circumstances the last day for any alleged acts of discrimination that were in time was 9 May 2016. Clearly the allegations set out at 8e and 8f are in time.[11]The allegations at 8a to 8d all relate to alleged failures relating to the redeployment of the Claimant via the medical capabilities arrangements. Despite the temporal spread that the Claimant himself has set out a vital fact is that the Claimant was suspended on misconduct grounds on 5 May 2016 at which time any active obligation to consider medical redeployment ended. As a consequence of that the last date of discrimination pursuant to the medical capabilities arrangements would have been 5 May 2016 and so 8a to 8d inclusive have not been brought within the statutory time limit unless they can be linked as being acts extending over a period. I will return to these in due course.[12]On 5 May 2016 the Claimant was called to a fact finding meeting to discuss the fact that the Claimant had been attending the criminal courts as a Defendant. The Claimant explained it had been going on since the end of 2015 and he had made a number of court appearances. He stated that it was for theft but he had not been charged or arrested. The Claimant was asked whether he was aware of the Respondent’s Code of Conduct wherein he was obliged to inform them if he was charged by the police and/or gained a criminal conviction. The Claimant advised that he was aware of that but that he had not been charged and hoped that it would all be over on 25 May. The Claimant was suspended.[13]A search of records by the Respondent disclosed that the Claimant had appeared at the Crown Court on 16 October 2015, 21 December 2015 and was the subject of a two day trial on 26 and 27 April 2016 at which the Claimant was found guilty of burglary. There would in all likelihood have been a t least one previous hearing at the Magistrates Court. The information given by the Claimant at the fact find was at best wholly inaccurate and at worst dishonest. A credible and exculpatory reason for the Claimant furnishing the Respondent with the correct information was not advanced at the time nor at this hearing and I find that there was no such reason for the Claimant’s conduct.[14]From this information it was clear that the Claimant had, contrary to his assertions at the fact find meeting, not only been charged but had actually been convicted of an offence of dishonesty after a jury trial and the only thing left to do was the sentencing process at the end of May. Leaving aside the clear breaches of the Respondent’s Code of Conduct there were also issues of honesty relating to the answers that the Claimant had given within the fact find meeting. It should be noted that the Claimant’s role within the Respondent was as a conductor which included cash handling responsibilities.[15]The disciplinary hearing was held on 28 June and I have seen a copy of the transcript to which no objection was taken. The claimant was late attending and failed to communicate his lateness in advance. He was given time to speak with his Union rep.[16]The Claimant confirmed in the hearing that he had been first to the police station in July 2015 and then was charged in October 2015 but it never seemed to be the right time to tell his managers. He confirmed that he realised that he should have told them and repeated that on a number of occasions. The Claimant had to be prompted by his Union representative to apologise and ask for leniency on the basis of his contrition.[17]The Claimant was dismissed for gross misconduct. The Code of Conduct itself and the standards therein were a requirement for the Claimant to meet under his terms and conditions of employment. The Claimant knew of the Code and its contents or had signed to say he knew and it was clearly stated that breach of the rules might be regarded as gross misconduct. In this case there was a gross breach by the Claimant on account of his failure to inform them of being charged and/or convicted which was a “deliberate or negligent contravention of the Rules” and /or “an offence that broke the necessary trust that existed between employer and employee”. The words in quotes are examples of what might constitute gross misconduct in the Handbook.[18]The Claimant appealed and set out five grounds which were as follows: a) Not being given time to read the codes of conduct before the fact find; b) Insufficient time to talk to his rep before he hearing; c) Lack of trust and confidence in management since September 2013; d) Being treated differently to a similar situation involving another conductor; e) One of the reasons for dismissal being that he had not shown any remorse.[19]An appeal was set for 1 August and the Claimant did not attend. Postage records confirmed that the correct information was sent on a second attempt. I was satisfied that the Claimant could have attended and argued his appeal had he so wanted.[20]During the course of the hearing I had written and oral submissions from the Respondent’s representative and I had oral representations from the Claimant. I encouraged him to provide for me the basis of his case and to tell me what he would be saying if the Case went to a final hearing. I am quite clear that the Claimant had every opportunity to disclose everything that he wanted to or could do about the issues in the case and how he would demonstrate his claims at trial.[21]Rule 37 of Schedule 1 the 2013 Employment Tribunal Rules of Procedure provides various grounds upon which a Claim can be struck out. In this case the Respondent seeks to rely upon the ground that the claims have no reasonable prospects of success. Rule 39 is the mechanism whereby a Deposit Order can be made as a condition precedent of the Claim proceeding if the Claim has little reasonable prospect of success.[22]I am very mindful of the fact sensitive nature of employment tribunal claims and the dangers that are inherent in disposing of claims prior to there being a full consideration of them under evidence that is tested under oath. That is particularly so in discrimination cases. I am aware and have taken into account the dicta in Anyanwu (2001) ICR 391 and also the guidance by Lady Smith in Balls (2011) IRLR 217. I have considered all information that has been placed before me and also considered anything of relevance on the Tribunal file.[23]I am quite satisfied that all of the information and evidence that the Claimant would wish to provide to me if this matter went to trial is before me today. I have seen notes of the fact find meeting and the disciplinary hearing and relevant documents surrounding the same. The facts are stark. The Claimant was subject to a Code of Conduct which he was aware of. In any event he should have known that he needed to tell his employers that he had been charged and/or convicted of a serious criminal offence of dishonesty especially as he was in a position of trust. He failed to do so over a long period and could give no adequate explanation as to why he did not nor did he show any remorse himself as to what had taken place as his Union official had to prompt him. A reasonable conclusion was that the Claimant had hoped that he would be acquitted and the whole matter would never come to light. The non-disclosure went to the very heart of the trust and confidence the Respondent could have in the employee.[24]There was no other explanation proffered for why the Claimant was dismissed and so there is a potentially fair reason for dismissal made out and it was inevitable that when matters came to light vis a vis the Claimant’s conduct that it would be investigated and on the admitted facts it would constitute gross misconduct. I can see no answer as to why the Respondent would not have a genuine belief of reasonable grounds after a reasonable investigation when the Claimant admitted his defaults in full.[25]From a procedural perspective the Claimant was given every opportunity to put forward mitigation and /or anything else in relation to the allegations. There were no defects in the process identified by the Claimant when I asked him today which were deemed to be unfair. Being generous to the Claimant and considering the matters he raised on the appeal I cannot see that even taken at their height the matters detailed at 18a, b, c and e would be capable of rendering the dismissal unfair. Having seen the notes 18b does not appear to be correct as the Claimant was given ample time to speak to his rep upon his late arrival and no postponement was sought.[26]I made further enquiries about 18d of the Claimant today. He told me that another employee was charged with threats to kill but he was not dismissed. Non- comparative treatment can lead to a finding of unfair dismissal if the circumstances are genuinely similar. From what the Claimant told me today the circumstances were not. Having said that the Claimant’s conduct was such a flagrant breach of the Code of Conduct that it is to my mind inconceivable that any Tribunal would find that the decision to dismiss was outside of a reasonable band of responses taking all matters into account. Accordingly I consider that the unfair dismissal claim has no reasonable prospects of success and I strike the claim out pursuant to Rule 37(1)(a) of the Tribunal Rules 2013.[27]The Claimant also seeks his notice pay in that he was summarily dismissed. That is, of course, a different test to the band of reasonable responses test used when considering claims of unfair dismissal. In this case the Claimant would be entitled to his notice pay unless the respondent can demonstrate that summary dismissal was appropriate on account of the Claimant’s repudiatory breach of contract. When considering such matters I have to be satisfied that the Claimant conducted the misconduct alleged and that it was sufficiently serious to amount to a repudiation of the contract.[28]In this case I am satisfied that I have all the information before me to consider the merits of the Claim and that sworn evidence would not take matters any further. There is an admitted breach of the Code of Conduct and an egregious one at that. That Code of Conduct is part of the terms and conditions and it is clearly flagged as potentially being gross misconduct. It also amounts to a serious breach of the implied term of trust and confidence which would be repudiatory in nature. In those circumstances I am quite satisfied that the Claimant would not be able to argue that the decision to dismiss summarily was in any way flawed and I strike the Claim out as having no reasonable prospect of success on the information I have before me and there is no prospect of anything else arising that might change matters.[29]I turn now to the allegations remaining of disability discrimination. I have seen notes of a medical Capability meeting on 1 March 2016 and no issue was taken as their accuracy. The Claimant is present with his Trade Union representative and also present is Louise Barham and Terry Phillips. The meeting reflects an appropriate and constructive discussion as to getting the Claimant back into the work place in either his role as a conductor or in another role. Louise Barham had provided interview skills training and there was to be a 16 week period where roles were looked at with the Claimant getting priority with redeployment. Mr Phillips is constructive and offers his assistance too.[30]There is no indication within this meeting of anything other than the Respondent utilising proper processes to get the Claimant back into the workplace. There is no negativity at all toward the Claimant and the Claimant makes no assertion that he has been discriminated against because of his disability or that other things need to be done to support him. Further the job roles at 8a and 8b are referred to and it is pointed out that the Claimant was very late to both of the interviews (45 and 30 minutes respectively) which had adversely affected the Claimant’s application.[31]There was a further meeting on 12 April in which it was confirmed that the Claimant had been given a list of potential vacancies but that he had not applied for anything. Notwithstanding this the Claimant is encouraged by Mr Phillips and Ms Barham to apply and to gain experience. On 4 May after the Claimant had been interviewed for a role in Customer Relations he wrote an email thanking Ms Barham and others for all their help and assistance saying that they had gone “above and beyond to assist”.[32]I offered the Claimant the opportunity to explain why it was he thought that the Respondent was discriminating against him in relation to the remaining matters. In short he could not explain it. He was unable to indicate to me any issue that linked his failures to get roles to his disability. In fact he actually linked it to long standing personality issues with managers and accordingly not linked to his medical condition at all.[33]I was satisfied that I had seen the relevant documentation and that I had been told the basis upon which the Claimant was putting forward his claims and that at trial the position would be no different. I took into account that there was no link at all to what was clearly a conduct dismissal and that accordingly there was no act extending over a period and so the claims 8a to 8d inclusive would all be out of time. I also considered the clear help and assistance that had been acknowledged by the Claimant of his managers over that time and the fact that he had been exceptionally late without good reason for two of the interviews. When considering all of these matters and taking the Claimant’s claims at their height I was quite satisfied that there was no reasonable prospect that these claims could succeed at trial and that I should strike the same out. I considered it highly unlikely that time would be extended and certainly when asked the Claimant did not provide any reasoning and in any event even of that hurdle were to be overcome I was satisfied on all that I had, taking the Claimant’s assertions unsupported by any evidence as they were, that there would be no reasonable prospect of success in relation to those claims.[34]Further so far as matters at 8e and 8f I was satisfied that there was no reasonable basis for suggesting that the dismissal and appeal process which was clearly solely in relation to the conduct issues had any link with the Claimant’s disability as all and there were no prospects of success in that case either.[35]The Claimant indicated that he was withdrawing the unlawful deduction of wages claim but that he considered that he was due holiday pay that had accrued during his sickness absence. Clearly that was a matter which I had no information on and so that sole matter should proceed to a hearing.