Employment Judge Hyams-ParishMs I Egan (instructed by Counsel) for respondentDate 11 September 2019
JUDGMENT
[1]The claim for unfair dismissal is well founded and succeeds.[2]The claim for holiday pay is dismissed upon withdrawal.[3]The case will be listed for a further hearing to consider remedy.
REASONS
Claim
[1]By a claim form presented to the Tribunal on 11 July 2018, the Claimant brings a complaint of unfair dismissal.[2]In their response, the Respondent says that the reason for dismissal was the Claimant's gross misconduct and that it acted reasonably in treating that reason as a reason for dismissal.
Preliminary matters
[3]Having stated on his claim form that the Claimant also wished to bring a holiday pay claim, this was withdrawn at the beginning of the hearing because the Claimant said he did not have the evidence with him to prove the claim and he preferred to concentrate on his principal claim of unfair dismissal. The Claimant confirmed that he wanted to withdraw this part of his claim which was dismissed upon withdrawal. Legal issues[4]At the beginning of the hearing, the Tribunal identified, and canvassed with the Claimant and Counsel for the Respondent, certain questions it needed to answer in order to determine the claim. Both agreed that they reflected the legal issues that the Tribunal would need to determine. The questions were as follows:a. Did the Respondent genuinely believe the Claimant to be guilty of misconduct?b. Was that belief based on reasonable grounds?c. At the time of forming that belief, had the Respondent carried out as much investigation as was reasonable in the circumstances?d. Was it reasonable for the employer to regard that conduct as gross misconduct on the facts of the case?e. Did the dismissal fall within the range of reasonable responses open to the Respondent?f. Was the dismissal procedurally fair?g. If the Claimant’s dismissal was procedurally unfair, should there be a “Polkey” reduction in the compensation awarded and if so, by how much?h. If the claim succeeds, did the Claimant contribute to the dismissal and if so, by how much, if any, should the basic and compensatory award be reduced?[5]The Tribunal also clarified with the Claimant the particular complaints of unfairness being pursued in support of his unfair dismissal claim. The Claimant confirmed these as follows:a. The Claimant was not given a copy of the disciplinary procedure;b. The Claimant was not kept up to date with the progress of the investigation;c. The disciplinary process took too long;d. The Respondent did not seek evidence relating to the Claimant's mental health and well-being to ascertain the extent to which, if at all, they had an impact on his behaviour on the day of the alleged misconduct;e. The person conducting the disciplinary hearing (Stuart Gumbrell) occupied the office next door to Mike Headington, the investigating officer;f. The person conducting the appeal (Daniel Allen) should have been more divorced from the process. The Claimant alleged that he was Mr Gumbrell’s manager;g. The Respondent did not take mitigating factors into account, notably the Claimant's personal circumstances and mental health;h. Dismissal was too harsh a sanction;i. The Claimant was not trained on the “near miss” procedure;j. There was a lack of consistency in treatment between him and other employees.
Evidence
[6]The Tribunal heard evidence from the Claimant and, on behalf of the Respondent, Stuart Gumbrell (Local Operations Manager) and Daniel Allen (Area Operations Manager).[7]The Tribunal was referred to documents in a hearing bundle extending to 434 pages. References in square brackets in this judgment are to page numbers in the hearing bundle.
Findings of fact
[8]The following findings of fact were made by the Tribunal, on the balance of probabilities, based on the evidence.[9]The Respondent is a train company employing approximately 6600 people in the UK. The Claimant commenced employment on 1 February 2016. Until his dismissal on 13 March 2018, the Claimant was employed as an Operations Control Manager.[10]An Operations Control Manager is responsible for the safe movement of trains in, around and out of the depot, and this includes such things as operating the signal panel, the safe locking of lines, train service departures and operation of the CCTV and the depot protection system.[11]During the period between December 2016 and March 2017, the Claimant was faced with a number of personal and family tragedies. In December 2016, the Claimant’s brother passed away, having suffered acute heart and respiratory problems. Then, in February 2017, his mother passed away having contracted pneumonia for the third time.[12]On 18 March 2017, the Claimant’s 12-year-old son was rushed into hospital with a burst appendix and remained in hospital for a total of 39 days, having had three operations to clear an infection missed by the hospital. The Claimant’s son was very seriously ill during this time and nearly died.[13]On 28 March 2017, the Claimant was placed on a capability development plan [91]. Objectives were agreed, including a requirement to pass the “Full Control Room Assessment”.[14]On 6 April 2017 a training needs analysis was carried out in respect of the Claimant because he had resumed work after a period of stress and bereavement related absence which resulted in him being away from the control room environment for seventeen weeks. The referral form [87] said that the Claimant's needs were to be “targeted towards regaining any lost confidence, practical use of the ‘panel’ whilst mentored, and scenario-based training to refresh his knowledge and become comfortable with the control room environment again”.[15]On 7 June 2017 the Claimant attended a meeting to discuss his performance. At the meeting, the Claimant said that “events at home” had “jumbled his mind” which made it difficult to focus in a safety critical environment and that this was a contributing factor in not achieving the required competence. On 8 June 2017 the Claimant was issued with a warning letter to improve his performance.[16]On 14 September 2017, the Claimant was on duty in the control room with another member of staff known as Michael Sherrin. Mr Sherrin was in charge of the signal panel during the shift (and therefore responsible for placing a block on a line) whilst the Claimant was working the CCTV desk.[17]The Tribunal was told by the Claimant, and it accepts, that there is a buddy system in place which means that employees doing the Claimant’s job normally work in pairs. The Claimant was able to perform both tasks that he and Mr Sherrin did during their shift, but the Claimant says he let Mr Sherrin work on the signal panel because that is what Mr Sherrin wanted to do.[18]At approximately 11am on 14 September 2017, a contractor requested that a block be placed on a line so that they could safely carry out some maintenance. At the time the contractor requested the line block, Mr Sherrin left the control room to speak to production managers who were on site, and therefore it was agreed that the Claimant would deal with the line block request. However, the Claimant had mistakenly understood that the block was to be placed on the “down” line, albeit the paperwork stipulated that it was to be placed on the “up” line and the Claimant had not checked the paperwork. Placing the block on the “down” line meant, in theory, that trains were not restricted on the “up” line where the contractors were working, and this could have resulted in injury, or even death.[19]When Mr Sherrin returned and took back responsibility for the signal panel, he spotted the Claimant’s error and it was corrected, having checked and clarified the position with the contractors. Having rectified the block, the Claimant amended the existing block request form rather than, as he should have done, complete a new form.[20]It is necessary to report an incorrect line block incident for health and safety reasons. The Claimant left his shift without reporting the incident, which when picked up by Mr Sherrin, was reported by him before the end of his shift.[21]The Tribunal finds that there was some confusion as to the precise nature of the reporting process required, ranging from the requirement to alert a line manager and/or duty manager, to completing what was referred to as a “near miss” report. In his investigatory interview with Mr Headington, Mr Sherrin was asked the following: Q: Put yourself in his [the claimant’s] shoes again; you’ve had an operational incident. If you would report it, who would you report it to? A: I don’t know the correct channels. Q: What’s the official way to report it? A: My line manager, I’m not sure whether Control would need to know but my line manager would advise me of that[22]The Tribunal noted with some surprise that witnesses were not able, during the hearing, to provide specific detail of the process required to report this incident or point to any forms that needed to be completed. It seemed to be suggested that the requirement to report would have been clear to anyone (including the Claimant), yet what became apparent during Mr Allen’s evidence, and which the Tribunal finds as fact, is that there was a specific report that needed to be completed in this case, referred to during the hearing and the disciplinary proceedings as a “near miss” report, which was specific to Siemens, who operated the depot.[23]The Tribunal finds that working in the control room needed to be a team effort. It was therefore not an unusual event for someone in the Claimant’s position to have covered the duties of a colleague, in this case Mr Sherrin, during a period when he left the control room. The requirement to work as a team was confirmed by Mr Gumbrell in his evidence when he said that “it is very much a team effort”. In answer to a question about reporting, Mr Gumbrell said in evidence “it can be a shared responsibility, but someone had to do it - and it didn’t happen”. Mr Gumbrell also said in evidence, in answer to a question by the Claimant about the problems with his relationship with Mr Sherrin, “..in hindsight things could have been different. Mr Sherrin could have supported but that didn’t happen. Once you realised the mistake you should have reported and I don’t think he should be apportioned blame but think he [referring to Mr Sherrin] could have behaved differently….”[24]Mr Headington interviewed the Claimant on 20 September 2017. This was the Respondent's first opportunity to interview the Claimant as he went on annual leave immediately after the incident. At the interview, the Claimant gave the following responses to certain questions: Q: Did you have adequate rest the night before? A: Not great the night before, I’m not good with earlys. My sleep tends to be 5 hour; I can't go to sleep if I go to bed at 22:00. I’m up at 04:45 for my early shifts and I leave at 05:30; it’s a struggle. I've got the usual concerns; my wife has started work and we have to get the kids to bed. There’s still other things hanging over us and we're sorting out mum and Gary’s stuff. These don't overly worry me but they tend to go over and over in my head if I can't sleep. I don't have any problems once I’m asleep; when I’m asleep, I’m asleep Q: What was your quality of sleep like Wednesday into Thursday? A: Not the greatest; I get up, shower, shave and work. I was fully awake by the time I got to work[25]The Tribunal finds that the Claimant's working relationship with Mr Sherrin was strained. During his investigatory interview, the Claimant alluded to a working relationship problem with Mr Sherrin which he said, “was not good for communication and team work ethic”. He said, “I find it hard to work with Mr Sherrin…he gives one-word answers and is not very communicative”. The Claimant also referred to Mr Sherrin as being “controlling”.[26]Following his investigatory interview, the Claimant was suspended for not reporting the line block incident.[27]On 25 September 2017, the Claimant sent an email to Mr Headington (a copy of which was included as an appendix to the Investigation Report referred to below) in which he suggests that Mr Sherrin ought to take some responsibility for what happened. It also included a section as follows: With regards to the actual block incident I would now like to bring to your attention some additional external factors that may have affected me with regards to contributing to the actions I took. You may have noticed during the end of our interview that I was just about to impart additional information. Given the seriousness of the situation I now find myself in, I feel that I should now impart this to you as follows…….[28]The Claimant told Mr Headington in the email about the personal and family tragedies referred to at paragraphs 11 and 12 above. At the end of the email he says: …when you asked why I sometimes do not get enough sleep prior to an early, it is basically because I'm not normally tired enough if I were to retire to bed at say 10 PM as I then have all these issues above on my mind. If I am tired, I have no problem so going to bed after midnight is the normal optimum time to ensure I go off to sleep without thinking about things too deeply. Therefore, I believe the combination of the final seventh early shift along with a lack of sleep may have had a bearing on my actions taken towards the incident.[29]The investigation into the incident was not completed until December 2017 despite all the investigatory interviews having been concluded in September (between 20th and 22nd). The Claimant chased up progress on a number of occasions but was told the investigation was still on-going.[30]The Investigation Report prepared by Mr Headington is dated 14 December 2017 [115]. On 4 January 2018 the Claimant was sent a copy of the Investigation Report together with an invite to a disciplinary hearing to answer a charge that he had breached rule 4.4.3 of the Govia Thames Railway Rules of Conduct which states: Report any breach of protocol/procedure that may cause endangerment to own safety or others immediately – to supervisor/line manager or relevant officer[31]The date of the disciplinary hearing was originally scheduled to take place on 11 January 2018, but this was postponed at the Claimant's request so that he could obtain advice. On 16 January 2018 the Claimant sent Mr Gumbrell an email saying that he had been signed off work by his GP until 9 February 2018 due to an “anxiety disorder”. The Claimant also stated that he was on anti-depressants.[32]The Claimant was referred to Occupational Health to assess whether he was fit enough to participate in a disciplinary hearing. Occupational Health advised that he was fit to attend.[33]The disciplinary hearing was held on 13 March 2018. It was conducted by Mr Gumbrell. During the disciplinary hearing, the Claimant said that the incorrect blocking was a mistake. When asked about why he did not report it, he said that he did not want to drop anyone in it and referred to Mr Sherrin talking down to him. Reference was made to the SPAD process which it became clear during the hearing was a different reporting process to the near miss process. He suggested that as he had been sent home early by Mr Sherrin, that Mr Sherrin would deal with the reporting. He then said, “I don’t know the near miss process” but rather than ascertain for himself that the Claimant was familiar with the near miss process, Mr Gumbrell said “You explained the process within the investigation pack”. Towards the end of the interview the Claimant repeated that he did not know about the near miss process.[34]The disciplinary hearing started at 10.40am and was adjourned at 11.26am. The hearing resumed at 12.43pm and the Claimant was informed that he was being summarily dismissed for failing to report the line block incident. The decision was based on Mr Gumbrell’s consideration of the Investigation Report and his interview with the Claimant. No-one else was interviewed as part of the investigation and no further enquiries were made.[35]Mr Gumbrell was clear in his evidence that, notwithstanding the termination letter had mentioned that the reason for dismissal was that the Claimant failed to block the line and report the incident, the reason for dismissal was the failure to report the incident only - not a failure to correctly block the line. Accordingly, the Tribunal finds as fact that the reason the Respondent dismissed the Claimant was because he failed to report the incorrect line blocking.[36]In treating this as gross misconduct Mr Gumbrell said in evidence that he relied on a provision in the Respondent's disciplinary procedure at paragraph 4.3.15 which states “conduct that endangers the life of colleagues, other employees or customers”. The Tribunal observes that the invite to the disciplinary does not mention paragraph 4.3.15 expressly but simply says that “you are charged with Gross Misconduct. This charge is in accordance to the company’s disciplinary procedure under clause 9” - which doesn’t appear to exist. During the disciplinary hearing, the rules of conduct (specifically rule 4.4.3) was referred to but not paragraph 4.3.15 of the disciplinary procedure expressly albeit the Tribunal accepts that the words “endanger life” were referred to and therefore Tribunal accepts that the Respondent did rely on paragraph 4.3.15 of the disciplinary procedure. The Tribunal also observes that there is a list of examples of “misconduct” at paragraph 4.2 of the disciplinary procedure as well as a list of examples of “Gross Misconduct”. Amongst the list of examples of misconduct there is included “failing to adhere to company or railway protocols, regulations or procedures”.[37]During the disciplinary interview the Claimant mentioned his personal circumstances but the Tribunal was struck by how relatively little time was spent during the hearing discussing this issue, either in terms of whether his personal circumstances would have affected him on the day or to what extent it should be considered as mitigation.[38]The Claimant appealed against his dismissal. The appeal was heard by Mr Allen on 28 March 2018. During this hearing, the Claimant presented his case in the same way as he did during the disciplinary hearing. At the end of the hearing, Mr Allen said that he wanted to “speak to a few people”. During the Tribunal hearing, Mr Allen was asked by the Tribunal who he spoke to, but whilst Mr Allen recalled speaking to a number of people, he could not remember who they were. When asked whether Mr Sherrin was one of those people, Mr Allen accepted that he was. It is clear that Mr Allen also looked at training records after the hearing. There were no notes of the further investigations or interviews, which the Tribunal found surprising. The Tribunal concludes that Mr Allen’s decision on the outcome to the appeal was influenced by his discussions with others, yet it was clear from the evidence that the appeal hearing was not reconvened to put any of this further evidence to the Claimant. When asked, Mr Allen confirmed that he did not have notes with him of the additional conversations.[39]It was a point made during the disciplinary and appeal hearings that the Claimant did not know the process for reporting a near miss and that he had not received training on the ‘near miss’ reporting process that was required. There was also nothing in the bundle produced by the Respondent that proved that the Claimant had been trained in the near miss process. Whilst Mr Allen alluded in his evidence to having found evidence that the Claimant had received training, not only was that evidence not included in the bundle, but the Claimant disputed this at the hearing and had not been given the opportunity to see such evidence during the appeal hearing and before Mr Allen reached his decision. The Tribunal concludes, on the balance of probabilities and on the available evidence, but also taking into account the findings of fact at paragraphs 21, 22 and 33 above, that the Claimant was not familiar with the specific near miss reporting process required to be completed following the above line blocking incident. Relevant law (a) Unfair dismissal
Relevant law
[40]Section 94 of the Employment Rights Act 1996 (“ERA”) provides a statutory right not to be unfairly dismissed. Generally, this is subject to a requirement that an employee has two years’ service. Section 98 of the ERA provides: -(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it: (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.[41]Section 98(4) ERA provides: Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[42]The burden of proving the reason for the dismissal is on the Respondent, but beyond that, when looking at the fairness of the dismissal, the burden is neutral.[43]When dealing with a conduct dismissal, it is clear from the case of British Home Stores v Burchell [1978] IRLR 379 EAT that it involves a consideration of three aspects of the employer’s conduct. Firstly, did the employer genuinely believe that the employee was guilty of the misconduct complained of? Secondly, did the employer have reasonable grounds for that belief? Thirdly, did the employer conduct such investigation into the matter that was reasonable in the circumstances of the case?[44]If the answer to each of those questions is “yes”, that is not the end of the matter because the Tribunal must then go on to decide whether the decision to dismiss the employee was within the band of reasonable responses, and whether the dismissal was procedurally fair. The ACAS Code of Practice on Disciplinary and Grievance Procedures can be relevant to procedural fairness.[45]In the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, guidance was given that the function of the Employment Tribunal was to decide whether in the particular circumstances the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair. If the dismissal falls outside the band, it is unfair.[46]In the case of Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23 CA, guidance was given that the band of reasonable responses applies to both the procedures adopted by the employer and the sanction, or penalty of the dismissal.[47]It is also clear that an investigation must be “even-handed” in order to be reasonable. In cases that may result in dismissal, particularly where the employee has been suspended and therefore has no access to witnesses during the investigation, the investigation should not simply be a search for evidence against the employee but should also include evidence that may point towards innocence. On the other hand, it is not necessary for an employer to extensively investigate each line of defence advanced by an employee. What is important is the reasonableness of the investigation as a whole.[48]The Court of Appeal in London Ambulance NHS Trust v Small [2009] IRLR 563 warned that when determining the issue of liability, the Tribunal should confine its consideration of the facts to those found by the employer at the time of dismissal. It should be careful not to substitute its own view for that of the employer regarding the reasonableness of S’s dismissal for misconduct. In Foley v Post Office; Midland Bank plc v Madden [2000] IRLR 82 the court said it is irrelevant whether or not the Tribunal would have dismissed the employee, or investigated things differently, if it had been in the employer’s shoes: the Tribunal must not “substitute its view” for that of the employer.[49]In a case where an employer purports to dismiss for a first offence because it is gross misconduct, the Tribunal must decide whether the employer acted reasonably in characterising the misconduct as gross misconduct, and also whether it acted reasonably in going on to decide that dismissal was the appropriate punishment. Employers must not assume that dismissal will always follow where gross misconduct is alleged, as there may be mitigating factors.[50]Exactly what type of behaviour amounts to gross misconduct will depend on the facts of the individual case. In Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09 the EAT summarised the case law on what amounts to gross misconduct and found that it involves either deliberate wrongdoing or gross negligence (paragraph 113). In cases of deliberate wrongdoing, it must amount to wilful repudiation of the express or implied terms of the contract (Wilson v Racher [1974] ICR 428 (CA)). It is generally accepted that it must be an act which fundamentally undermines the employment contract (i.e. it must be repudiatory conduct by the employee going to the root of the contract).[51]The ACAS Code states that the employer’s disciplinary rules should give examples of what the employer regards as gross misconduct, i.e. conduct that it considers serious enough to justify summary dismissal (see para 24). The Code suggests this might include theft or fraud, physical violence, gross negligence or serious insubordination. Although there are some types of misconduct that may be universally seen as gross misconduct, such as theft or violence, others may vary according to the nature of the organization and what it does. A failure to list certain types of behaviour as gross misconduct may mean that the employer cannot rely on them to dismiss summarily.[52]When considering whether conduct should be characterised as gross misconduct, employers should bear in mind that:a. The conduct must be so serious that it goes to the root of the contract, that is, the conduct must be repudiatory, entitling the employer to dismiss with immediate effect; andb. The conduct must be a deliberate and wilful breach of the contract or amount to gross negligence.[53]It is clear from case law that where an employee’s apparent ill-health may be a contributing factor to behaviour that the employer considers amounts to gross misconduct, a failure to investigate that ill-health before dismissing the employee is likely to make the dismissal unfair. In British Telecommunications plc v Daniels UKEAT/0554/11, the EAT upheld a Tribunal’s decision that a reasonable employer would not have dismissed an employee (who committed acts of dishonesty) without first obtaining an occupational health report to see if there were issues relevant to his state of mind and the issue of mitigation. The Tribunal pointed out that “with BT we are dealing with a substantial global concern with substantial facilities and resources at its disposal … the Tribunal would have expected a reasonable employer in this position to have certainly written to occupational health asking for a full report prior to proceeding any further.” Submissions by the parties[54]The Claimant and Counsel for the Respondent made closing submissions which the Tribunal considered carefully prior to reaching its decision. Counsel for Respondent's oral submissions were supplemented by written submissions which were provided to the Claimant and the Tribunal, which were also considered. Analysis and conclusions (a) Reason for dismissal[55]For the purposes of establishing the reason for dismissal, the employer only needs to have a genuine belief in the employee’s misconduct; the belief does not have to be correct or justified. This was not challenged by the Claimant and he did not suggest that the reason for his dismissal was anything other than misconduct. Therefore, the Tribunal concludes that the reason for dismissal was misconduct and the Respondent has discharged the burden of proving that it dismissed for a potentially fair reason. (b) Reasonableness of investigation[56]The Tribunal concludes that those dealing with this case, from investigation to appeal, appear to have adopted an overly narrow view on what was to be investigated and did not pursue lines of enquiry that became apparent from what the Claimant told them and which the tribunal concludes a reasonable employer would have followed up.[57]There are two principle lines of enquiry which the Tribunal considers a reasonable employer would have explored. The first was with regards the Claimant's mental health and well-being at the time of the incident given the proximity in time of the personal difficulties he had encountered and the fact that he raised this as a contributing factor shortly after his investigatory interview with Mr Headington. The Tribunal observes that the Respondent referred the Claimant to Occupational Health for the purpose of seeking advice on whether he was fit to attend a disciplinary hearing but that they did not ask Occupational Health for a view on the extent to which, if any, the Claimant’s behaviour on the day of the incident may have been affected by any mental health issues resulting from a succession of tragedies and difficulties in the Claimant's personal life. Neither did they seem to be concerned to obtain such information so that they could consider whether there were mitigating circumstances that needed to be considered in terms of the Claimant's health. It was quite clear to the Tribunal that no-one involved in the disciplinary or appeal process had the necessary expertise to form an opinion on this themselves. The Tribunal considered that in view of the size of the Respondent, it would have had access to Occupational Health support and did indeed access occupational health for a view on whether he could attend a disciplinary hearing.[58]The second area of enquiry that the Tribunal concludes a reasonable employer would have explored was in connection with training records, given that the Claimant stated that he had not been trained in the “near miss process”. Indeed, Mr Allen clearly saw the need to look into this further but he was not able to provide evidence, to the satisfaction of the Tribunal, of training records showing that the Claimant had been properly trained in the near miss process. In any event, this information was not put to the Claimant for his comments during the appeal hearing.[59]As to length of the investigation, no reason was given as to why the investigation took so long in circumstances where the work by Mr Headington was completed in September 2017. The Tribunal concludes that there was no good reason for the delay. (c) Reasonableness of treating the allegation as gross misconduct[60]It is clear that the Tribunal must consider both the character of the conduct and whether it was reasonable for the employer to regard that conduct as gross misconduct on the facts of the case. Here, the Respondent relied on a provision in the disciplinary procedure that could capture a very wide range of behaviour. It is not a rule which relates specifically to failing to report health and safety breaches, which could easily also fall into behaviour that is categorized as mere misconduct in the disciplinary procedure. It is therefore necessary also to consider whether on facts of this case, the common law test of gross misconduct is met.[61]Bearing in mind the specific facts of this case, detailed in the above findings of fact, the Tribunal concludes that the Claimant’s conduct was not so serious that it went to the root of the contract or that the Claimant’s actions represented a willful and deliberate breach of contract. As has been said above, the Tribunal finds that the Claimant had not been trained in the near miss process. There was a distinct lack of clarity generally as to the correct process required in circumstances where Mr Sherrin was the person responsible for line blocking generally on the shift, albeit the Claimant took responsibility briefly when Mr Sherrin left his station to speak to production managers.[62]The Tribunal accepts that the Claimant committed an act of misconduct and that it warranted disciplinary action but given what has been said above about the reasonableness of describing the conduct as gross misconduct, the Tribunal concludes that dismissal was outside the range of reasonable responses open to the Respondent in the circumstances. (d) Appeal procedure[63]The Tribunal was troubled by the fairness of the appeal procedure, which defeated the very purpose of it, which was an opportunity for someone to look at the dismissal afresh and decide whether it was the correct decision to take. As has been referred to above, it is clear that witnesses were spoken to by Mr Allen following the appeal hearing, yet he was unable to tell the Tribunal who he had spoken to; no notes were available relating to these further investigations, and the Claimant was not provided with an opportunity to comment on the additional evidence before Mr Allen made his decision. On balance the Tribunal concludes that the appeal process was inadequate and that this rendered the process unfair.[64]In all the circumstances, the Tribunal concludes that the complaint of unfair dismissal is well founded and succeeds.[65]The Tribunal concludes that it does not have sufficient information before it to deal with remedy. This will therefore be considered at a separate hearing, when the Tribunal will also consider representations from the parties on the extent, if any, there should be a reduction on the grounds of Polkey and/or contributory fault, given the above findings. ………………………………………………