D Duffy v Stagecoach South East: 2303440/2020
JUDGMENT
The Respondent’s application for a deposit order is refused.REASONS
[1]On 10 November 2020, the Respondent issued an application under Rule 39 of the Employment Tribunal (Constitutional and Rules of Procedure) Regulations 2013, for a deposit order against the Claimant, on the basis that his unfair dismissal claim had little reasonable prospect of success. On 5 February, Mr Joel Mitchell, the Responder’s Managing Director, provided a witness statement, further details of which are summarised below. Brief facts[2]The Claimant was an engineering manager who had worked for the Respondent at their Dover and Folkestone depot since August 2009. The Claimant brings a claim of unfair dismissal. He says he was incorrectly suspended on 16 March 2020, and was dismissed while he had a grievance outstanding against his manager. In his ET1 at paragraph 8, he raises a number of procedural and substantive challenges to his dismissal. In particular he says that His suspension was incorrect[2]Additional matters were added into his final appeal hearing[3]The disciplinary process took too long [14 weeks in total][4]His disciplinary hearing was dealt with by telephone, whereas others were offered a face to face or video hearing;[5]No or insufficient account was taken of the fact that he had 12 years of clean service and was regarded as honest 3. The Respondent denies the claims. It says, in its ET3 Response, the Claimant was fairly dismissed for a number of conduct-related reasons, following a full and fair investigation, disciplinary hearing and appeal process. In particular, it says there was an incident on 5/6 March 2020 when a number of buses ran out of fuel and were stranded. This led to the Claimant being suspended. During the investigation which followed, a number of other matters, all or any of which the Respondent believed could amount to gross misconduct, were uncovered. 4. The Respondent’s application for a deposit order was heard at the Telephone Case management hearing on 8 February. As I did not have a copy of the witness statement and exhibit of Mr Mitchell, there was brief adjournment of the Telephone hearing in order for this to be supplied and so that I could read it and the exhibits. 5. In his witness statement, Mr Mitchell set out the background to and reasons for the deposit order application. Put briefly, Mr Mitchell says that section 8.2 of the ET1 states that the Claimant’s claim for unfair dismissal is based on, in summary the 5 allegations set out above at paragraph 2.[6]In respect of item 1, Mr Mitchell says this is incorrect: he says the Claimant was suspended from his duties, on full pay, on 16th March 2020 in accordance with clause 13 of his contract of employment dated 29th October 2019 (see pages 16 – 26 exhibit JM1). He says this was confirmed to the Claimant by letter dated 16th March 2020 (page 27 exhibit JM1). In respect of items 2 and 4, Mr Mitchell asserts these are not legitimate grounds with which to bring an unfair dismissal claim. He says that, in any event, the Claimant was advised during the period of suspension that further allegations of misconduct had been identified and that these would also be investigated. He refers in this regard to the letter relating to the suspension dated 19th March 2020 (page 15 JM1). In regard to item 3, Mr Mitchell explained that the disciplinary procedure took 13 weeks; from the date the Claimant was suspended on 16th March 2020 to the decision to dismiss being upheld at the final appeal stage on 19th June 2020. He said this procedure covered suspension, the investigation, the Disciplinary Hearing, the First Stage Appeal and the Second Stage Appeal, with both appeal stages including a further investigation period. He said that this coupled with the transitional issues of working during the Covid-19 lockdown period, meant the disciplinary procedure was handled expediently, reasonably, fairly and without undue delay. In respect of item 5, Mr Mitchell said the Respondent does take into consideration length of service and an employee’s relevant misconduct record, but the allegations against the Claimant were deemed to be gross misconduct and while length of service and a clean conduct record were considerations, they are not, on their own, legitimate grounds for a successful unfair dismissal claim. He therefore said that he believed that the Claimant’s claim for unfair dismissal had little to no reasonable prospect of success.[7]Mr Kessack submitted that, on this basis, the Claimant’s ET was fundamentally flawed. He pointed out that that the test to be applied in such an application is that the tribunal may make a deposit order if it considers that(i) Any specific allegation or argument(ii) in a claim or response(iii) has ‘little reasonable prospect of success’. He said this applied with regard to each individual allegation as well as to the claim in its entirety.[8]Mr Duffy took exception to the descriptions put forward by Mr Mitchell. He said that, with regard to item 1, he was given no details about his initial suspension, was not put on notice of it and was given no details until he asked. With regard to item 2, he said he was no referring to additional matters being added during suspension but during his final appeal: he said he thought they did this to avoid a further disciplinary hearing; he said this related to accounting for money for scrap metal and how it was kept; On item 3 he said he was not kept properly informed about when things were going to happen – he was left waiting in the dark. After discussion he accept that 14 weeks during the pandemic was probably not unreasonable and agreed that he would not be pursuing the length of time as an individual procedural defect. On item 4, he said was others were offered either face to face or video hearings at the same time he was offered only a telephone hearing. On item 5, he repeated that he did not believe proper account had been taken of his length of service, honesty and exemplary record.[9]Mr Kessack said the Respondent disagreed with what the Claimant had said. He said that clause 13 of the terms of employment in the Contract entitled the Respondent to suspend the Claimant. He said the letters of suspension had been exhibited. The applicable legal principles[10]Rule 39 allows for a party to be ordered to pay a deposit of up to £1,000 in order to continue to take part in proceedings, where an Employment Judge considers that any arguments or allegations in a claim have “little reasonable prospect of success”. Before making any order, it is necessary to make reasonable inquiries of the party’s ability to pay. Mr Mitchell in his witness statement pointed out that the Claimant currently earnt £604.85 per week (net) and said that he was therefore in a position from a financial perspective to make payment in respect of a Deposit Order.[11]In Hemdan v Ishmail & Another, UKEAT/0021/16, the EAT identified at [10-11] of its Judgment the purpose of a deposit order as being to identify claims with little prospect of success and to discourage pursuit of those claims by requiring a sum to be paid and by creating a risk of costs if, ultimately, the claim fails. The purpose is not, however, to impede access to justice or to effect a strikeout “through the back door”. A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise (see at [17]). The EAT in Van Rensburg v Royal Borough of Kingston-upon-Thames & Others, UKEAT/0095/07, held at [27] that an Employment Tribunal must have a proper basis for doubting the likelihood of a party being able to establish the facts essential to a claim or response.[12]For the purposes of a deposit order application, the Claimant’s case should be taken at its highest. A deposit order cannot be made merely because a party’s case is not clear (Tree v SE Coastal Services Ambulance NHS Trust (UKEAT/0043/17)).[13]As set out in Hemdan, (paragraph [12]) the test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, in contrast to the test for a strike out which requires a tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence. Further, (Hemdam [13]) the assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. “Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial of the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise. … If there is a core factual conflict it should properly be resolved at a Full Merits Hearing where evidence is heard and tested.”[14]Once a tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case. That means that regard should be had for example, to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved, and the case is likely to be allocated a fair share of limited tribunal resources, are also relevant factors. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest (Hemdan [15]). If a tribunal decides that a deposit order should be made in exercise of the discretion pursuant to Rule 39, sub-paragraph (2) requires tribunals to make reasonable enquiries into the paying party’s ability to pay any deposit ordered and further requires tribunals to have regard to that information when deciding the amount of the deposit order. Those, accordingly, are mandatory relevant considerations (Hemdam [16]). An order to pay a deposit must be one that is capable of being complied with. A party without the means or ability to pay should not therefore be ordered to pay a sum he or she is unlikely to be able to raise.[15]The 2013 Rules make explicit that deposit orders can be made in relation to individual “allegations or arguments”. A party can therefore line up a series of allegations which it says have little prospects and seek deposits in relation to each, although the tribunal must in the end “stand back and look at the total sum awarded and consider the question of proportionality before finalising the orders made” (Wright v Nipponkoa Insurance (Europe) Ltd (UKEAT?0113/14)). Discussion and Conclusion[16]There are a number of matters here that are challenged that are the subject of factual disputes, which can only in my judgment be resolved by hearing evidence on oath from both sides (e.g. items 1, 2, and 4). These matters are all matters of procedure which, if upheld by a Tribunal, could amount to a finding that there has been a procedurally unfair dismissal, irrespective of any substantive reason. I am reluctant to order a deposit to be paid, when there are such factual disputes. Further, on item 1, clause 13 of the Contract does not in fact deal with any rights of the employer to suspend during an investigation – as opposed to when notice of termination has been given. That is not to say that an employer cannot suspend absent express contractual provision, but that clause is not a “slam dunk” answer to this allegation. Item 5 is in my judgment a matter for the Tribunal hearing the case to resolve on the evidence, in terms of whether dismissal in these circumstances was within the range of responses of a reasonable employer and whether these matters were properly taken into account by the dismissing officer and given due consideration. I do not believe it is appropriate for me to endeavour to assess the merits of this at this interim stage. While it is clear that a Tribunal can assess the plausibility of a party’s case, the factual truth or otherwise of a claim or allegation, is something that in this case in my judgment requires determination by the Tribunal at the full hearing.[17]In my judgment, with the exception of item 3 on length of time, the matters raised by the Claimant do potentially disclose a basis upon which an Employment Tribunal could uphold the claim of unfair dismissal, either on procedural or substantive grounds. Whilst it may well be difficult for the Claimant to succeed at a Full Hearing of his unfair dismissal claim, in my judgment that does not mean that he has “little” reasonable prospect of success. On balance therefore, I do not consider that it can be said, with the exception of item 3, which the Claimant has conceded, in particular given the impact of the Covid 19 pandemic, would be unlikely to succeed, that the Claimant’s case of unfair dismissal or the individual allegations relating there to, has no reasonable prospect of succeeding. I therefore dismiss this application for a deposit order. ............................................................Background
[18]Once these matters were discovered further letters of suspension were issued to the claimant and all three matters formed the basis of a disciplinary hearing.[19]The disciplinary hearing took place on the telephone on 06.04.20. That meeting was chaired by Joanne Howe and concluded with a decision to dismiss the claimant on all three grounds of alleged misconduct.[20]The claimant appealed. On the 22.04.2020 an appeal hearing took place chaired by Chris Remnant. That appeal hearing upheld the appeal in part. The decision in relation to the misconduct dismissal relating to the fueling issue on 6th March 2020 was overturned. However, the appeal upheld the dismissal decision upon the two other limbs.[21]The respondent has a two-stage appeal process. The claimant initiated this, and a further appeal hearing was heard by the managing director Mr Mitchel on 07.05.20. During the intervening period of time two further matters were alleged against the claimant. Firstly. that he had solicited workers to falsify overtime claims for a cut of the money, and secondly that he had not accounted properly for the sale of scrap metal. The latter of these two matters was not progressed as it was not felt necessary or proportionate to include this within the misconduct hearing.[22]The appeal was reconvened again via telephone on 19.06.20 where the dismissal decision was upheld. Subsequent to that appeal the claimant initiated these proceedings.[23]The claimant claims that the appeal process was fundamentally unfair, having been conducted entirely via telephone and taking 14 weeks to conclude. He offers mitigation and justification for the misconduct complained of (which I shall deal with below). He also argues that the dismissal sanction was unduly harsh and should have been substituted with a lesser sanction. For the avoidance of doubt the claimant does not seek re-instatement.[24]I have considered an extensive bundle of evidence and I have heard evidence from the key witnesses in this matter, namely the claimant, Grahame Patterson the investigating officer, and the three decision makers, Joanne Howe, Chris Remnant and Joel Mitchell. The evidence and submissions lasted for two days. Findings of fact and analysis[25]Where it has been necessary to resolve a conflict of evidence, I have indicated this. No witness (other than the claimant) has been called by either party to speak to any elements of disputed facts. Incident on 6th March 2020[26]This incident was the catalyst for the claimant's dismissal. The incident was not of his making. He attended out of hours on 5th March 2020 and took personal responsibility for repairing the fuel pump. That much was commendable and underscored the commitment which the claimant had shown to his role and to the respondent.[27]However, having taken charge of the incident, he was then in the most senior management position to resolve any difficulties created by this. The claimant told me that along with a colleague they agreed that vehicles with half a tank of fuel, (which had been missing from the fuel run) should be ok for the following day as they had used less than half a tank on the preceding day. This was a huge assumption on their part and left no margin for error.[28]I was informed that the vehicle fuel sheets had been marked with a cross for the vehicles that had been missed. It then appears that no one was tasked with crossreferencing the vehicles that had been missed, with the amount of fuel they had. The claimant instigated no procedure to ensure they were checked or fueled. The claimant admitted in evidence to me that he should have made arrangements to put the vehicles back through the fueling line. I agree. Subsequently, why the drivers did not raise early concerns was not explored by the respondent.[29]However, this was in my view undoubtedly a chaotic and stressful situation. No evidence has been presented to me to suggest that the respondent had any form of procedure or contingency to deal with these types of issues. Undoubtedly, fueling issues did occur from time to time. Grahame Patterson confirmed that there had been issues over the years where such incidents had occurred, for reasons beyond the control of engineering.[30]In terms of the criticisms for the coding of the lost mileage, much is made in the papers of the claimant’s use of ‘other internal’ as the cause of the issues. From all the evidence I heard, I could not decipher what the claimant was supposed to record the errors as. It seemed to me that the rationale provided by the claimant was justifiable, even if he was incorrect in doing so. I do not consider there was any attempt to conceal the issue.[31]The issue about whether the claimant had minimised the incident by asking a colleague to “shush” when discussing the issue, was a factor in the original dismissal. That was later overturned upon appeal and Chris Remnant, who accepted that this was banter between colleagues discussing the issue and not a genuine minimisation. Text messages produced in this bundle confirm as much.[32]Finally, with regard to the major incident report, which it is said the claimant failed to complete following the police attendance. I have to say that this was a process which lacked a clear and transparent procedure. No one addressed me on how soon this should be completed. Joanne Howe, was asked by me to explain how the person responsible for completing the report was identified. Having heard her evidence, I remain at a loss to understand what the procedure was. I am not sure that she knew either. It seems to me that any number of senior managers could or should have been responsible for the task. Who it was assigned to and how, was at best opaque. Whether the claimant ever knew it was his responsibility is again unclear.[33]The analysis I have articulated above, goes above and beyond the reasons that Chris Remnant gave for upholding the appeal in respect of this issue. I have gone into detail because it is important to understand how the disciplinary process started and the justification for the suspension.[34]Whilst there were undoubtedly errors in the way the incident was handled by the claimant. I do not understand why these could not have been resolved by discussion, performance management and supervision by his line manager, in the first instance, rather than moving to an investigatory phase. The fact that there were no formal management meetings within engineering about this issue goes some way to justifying the claimant’s position that there was a fractured working relationship with his line manager. Given that the claimant had been consistently promoted over his 13-year career with the company, was not taken into account at this stage.[35]The decision to suspend the claimant (for the reasons articulated above) appeared to me to be unfair, and unnecessary in the circumstances. Had the suspension and dismissal been based on these matters alone, then I would have been concerned about the fairness of the dismissal decision. It seems to me that Chris Remnant was right to uphold the claimant’s appeal in this regard. However, this is far from the end of the process.[36]The fact that during the claimant’s suspension, that he was further suspended for two additional matters, cured the deficits in fairness regarding the original suspension. I say this because those two matters related principally to vehicle safety and payroll irregularities, both of which are matters which an employer might reasonably be expected to suspend an employee for, whilst an investigation took place. I accept that the claimant was in a position of special responsibility with regard to safety.[37]Graham Patterson was independent as an investigating officer and he had extensive knowledge of engineering work practices. Indeed, he would have been the claimant’s line manager in November 2019 in respect of the payroll irregularities. The claimant raised no issues with the integrity and knowledge of Grahame Patterson, other than whether he had spoken to all necessary employees.[38]It seems to me that the investigation carried out by Grahame Patterson on these remaining issues was fair and balanced, and proportionate to the size of the company. I note that the claimant does not deny that he had not completed the paperwork in respect of his decision to authorise the use of the vehicle with the break disc issue, or that he had authorised payroll for hours not worked. I shall deal with the subsequent allegations later. Break disc issue[39]I have heard extensive evidence on this matter. There is no dispute that the vehicle in question had one disc that was measured by the engineer to be below the manufacturing tolerance. The claimant re-measured the brakes (with the wheel on) and considered that they were ‘on the limit’.[40]Mr Patterson agreed in evidence that this was not strictly speaking illegal if the vehicle was below the tolerance. He argued that at this level the manufacturers indicate that the performance of the breaking could be affected. He told me that if there was any doubt the wheel should have been removed to measure it more accurately and that this was not done. He indicated that in any event the failure to update the paperwork with the measurements and sign it fit for service was the issue, even if the break test was satisfactory (as the claimant argues).[41]Mr Patterson argued that if an accident had occurred, then there would have been a VOSA investigation, and the company and its senior staff may have been liable in those circumstances. There was nothing to evidence the claimant’s assertion that he had measured the breaks and his reading was not recorded.[42]I accept that the claimant measured the break. I accept that he believed it was safe (that day). I do not for a second believe that the claimant would have allowed the vehicle to enter service if he perceived it to be unsafe. However, I suspect that the claimant was driven by an ambition to have a smooth-running operation. That unfortunately has clouded his judgment.[43]The vehicle had its breaks measured on a 28-day rolling basis. It follows that there must be a logic to this, regarding the amount of wear sustained during this period. The fact that the vehicle entered service for 13 days (almost half of this period), suggests that at the point it was removed, it would have been well below the tolerance, even if it was at the limit as the claimant suggests.[44]The claimant failed to record his measurements or his rationale for allowing the vehicle to enter service. He ordered the parts, but did not arrange for them to be fitted. Although he was on annual leave for some of the following period, I find that he should have taken steps to ensure the vehicle was serviced and he should have recorded his actions.[45]His failure to do so allowed a vehicle to enter service that either was or became unroadworthy (according to manufacturing specifications). I agree with Mr Paterson that in those circumstances the company may have faced significant consequences including criminal liability, had an incident occurred. In short, I can easily see how those charged with investigating this matter perceived this neglect to amount to gross misconduct. It is not an unreasonable conclusion to arrive at. Payroll irregularities[46]The claimant does not deny that he authorised payments to his son and he says another worker as well, when their time keeping fell below the expected standard. There was no dispute that there was a responsibility upon the claimant to check the timesheets against the clock cards. He argued that the clocking in was not always accurate. This stems from a dispute regarding the number of authorisations he had made.[47]The claimant argues that in the past that he had been permitted to authorise overpayment (compared to the clocking cards) for another worker, so that they would receive full pay at times of ill health. Albeit this permission had been specifically authorised for this individual by his line manager.[48]The claimant argued that the workers in question here were suffering with mental health issues and he was trying to support them through a difficult period and manage them out of the situation. The respondent treated these incidents as the claimant seeking to profit from a fraudulent entry on the time cards.[49]I have great difficulty with the suggestion that the claimant was profiting from the arrangement. I prefer the claimant's argument that he was trying to support underperforming workers. Unfortunately, I consider that the claimant minimised the period of time that this had gone on for and I am not convinced he has a clear picture of this himself.[50]I am also persuaded that the claimant did not have authority to authorise these payments, either from a management perspective, or without further evidence of the health difficulties of the workers involved, which should have been recorded. The difficulty here is that the claimant had a family relationship with the worker involved. That gave him access to information not available to the respondent. Anyone objectively reviewing the situation thereafter would not have such knowledge. In short the claimant cannot evidence his point.[51]Given the relationship the claimant had with the worker involved, he should have sought approval for his approach as it could easily have been seen as a conflict of interest. That approval (at the time) would have been from Grahame Patterson, with whom the claimant had a positive working relationship and whom he knew had a compassionate approach to other employees in similar circumstances. I consider the reason he did not do so was because he knew that another manager may well have been less tolerant of the situation.[52]It seems to me that in the circumstances it would not have been unreasonable to conclude that the actions of the claimant amounted to misconduct. Burchell Test[53]I have heard extensive evidence and submission on the issue of the disciplinary process and investigation. The claimant has been candid where he accepts his conduct has been culpable. I have carefully considered the fairness of the decision making in the context of S98(4).[54]I have already expressed my findings and doubt about the origin of the investigatory process. It was initially flawed and unnecessary in my view. However, it seems to me that there was a genuine belief that the claimant had committed a misconduct. Once the investigation started further allegations and evidence came to light. From the point of the second suspension letters, the process was in my view corrected and had a secure foundation. I have no hesitation in finding that from this point that the respondent had a reasonable belief in the claimant’s misconduct.[55]It seems to me that although there were some shortcomings in relation to the investigation of the fueling incident on 6th March, the investigation itself was thorough and balanced. The claimant had an opportunity to put his case and he has been candid in accepting his own errors and shortcomings. Witnesses were spoken to. Many of the matters were acknowledged by the claimant. The fact that the respondent did not re-interview certain people, did not in my view render the whole investigation unfair, given the context of the claimant’s admissions.[56]In terms of the original disciplinary meeting chaired by Ms Howe, the claimant complained that this should have been heard by someone with an engineering background. Had it been so, he argues a greater latitude would have been afforded to him. I disagree.[57]Whilst I have made findings in respect of the flaws in the decision making regarding the fueling incidents, these were overturned subsequently by the appeal.[58]It strikes me that it does not take an engineer to observe that the break disc service paperwork provided by the claimant was incomplete, and that fact alone created a liability for the respondent. The fact that elements in respect of the fuel pump incidents were overturned upon appeal shows the objectivity with which the respondent viewed the issues.[59]By the time matters came before Joel Mitchell for the final appeal, two further matters had arisen. It was deemed that matters in relation to the scrap metal policy and funds would not be pursued. I make no finding in respect of that.[60]However, the second matter was more concerning. Mr Mitchell said that allegations made by fellow employees that the claimant had offered to artificially inflate their overtime for a cut of the money. Mr Mitchel argued in evidence that these matters refocused him. He was, by his own admission, inclined to see the good in people and re-instate them. The high regard which he held the claimant in, was clear to me.[61]Mr Mitchell said that it was these allegations which refocused and underlined his belief that the claimant was prepared to try and profit from these arrangements. He referred to his belief that the claimant was profiting from payroll irregularities with his son.[62]These new allegations added little, in my view, to the overall investigation. I am inclined to accept what the claimant says, that these comments had their origins in light-hearted banter or a joke related to how much overtime he was authorising. Nor do I believe that they truly influenced the appeal decision. Mr Mitchell’s reasoning on the other matters was clear, reasonable and justifiable.[63]Mr Mitchell’s role was to look at the evidence and the process to do date to decide if it had been fair and review any new submission. It was not a rehearing. The appeal process has been settled with the union. The claimant was represented at each hearing by a union representative. Whilst the hearings took place by telephone, I am not persuaded that these made them unfair. These meetings took place at the height of the covid pandemic. Whilst video or in person would have been preferable, I am satisfied that the claimant was able to make his points appropriately.[64]The respondent company is a household name. They have well-defined resources and procedures for dealing with disciplinary matters, which have been agreed with the union. These were followed in full. I am satisfied that the steps taken in the claimant’s case were an appropriate use of resources for the size of the company involved. The investigation itself appeared reasonable to me.[65]Turning then to consider the fairness of the S98(4) decision. The claimant has been candid regarding his own shortcomings. Whilst there were issues with the investigation and decision regarding the 5th and 6th May. The subsequent suspension for the break disc issue and the payroll irregularities cured any deficits in the process. These subsequent issues were in many respects more serious than the fuel pump incident.[66]Each of these matters independently contained admissions by the claimant of his own culpability. It is to his credit that he has not tried to hide away from them. However, I accept that safety is a significant issue for the respondent. The decision to dismiss him for the break disc issue seems to be entirely within the band of reasonable responses for an employer. The claimant was responsible for safety and his shortcomings in those circumstances were significant.[67]Equally the payroll irregularities clearly severed the trust and confidence that had been afforded to the claimant. Even if he had some discretion to support his staff, the level and duration here as well as the family relationship was a matter, he should have sought authority for. Not least because he was the only one who knew of his son’s difficulties which were entirely undocumented elsewhere, by the claimant. For all those reasons I conclude that it was within a band of reasonable responses to dismiss the claimant for the payroll issues.[68]Therefore, both separately and together the claimants' shortcomings with the break disc and the payroll were within the band of reasonable responses to merit dismissal.[69]I have considered the claimant's argument that a demotion may have been appropriate. However, I am not satisfied that this would have cured the trust and confidence breach. The safety breach, as I have said, was significant. For these reasons I think it was reasonable for the respondent to conclude that a dismissal without notice was reasonable in the circumstances.[70]Looking at matters in their totality, I am satisfied that the respondent acted fairly and reasonably and had reasonable belief in the claimant's misconduct. The claimant admitted his errors and the investigation, in the main, was comprehensive and fair. For all of those reasons I consider the Burchell test to be satisfied.[71]For all of those reasons above, I dismiss the claimants claim for unfair dismissal.[72]That is my judgment.