[1]The claim of sexual harassment contrary to s26 of the Equality Act 2010 was presented out of time. The Tribunal was not persuaded to exercise its discretion to extend the time-limit.[2]The claim for unlawful discrimination on the basis race was withdrawn by the Claimant prior to the hearing.[3]The claims for notice pay and unlawful discrimination on the basis of disability were withdrawn by the Claimant during the hearing.[4]The claim of unfair dismissal, was presented within the primary time-limit and that claim proceeds.
REASONS
[5]Judgment having been given to the parties on 8 April 2025 and written reasons having been requested by the claimant on 11 April 2025, in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided.
Background
[6]The claimant was employed by the respondent, as a security team manager, from February 2019 until his dismissal on 2 May 2024.[7]An incident took place on 24 October 2023 and a few days later a complaint was made against the Claimant about his conduct.[8]Relevant timeline: - 1 June 2023 Allegations made against the Claimant of sexual harassment. Investigation, complaint upheld, final warning issued - 24 Oct 2023 The incident - sexual harassment (the “incident”) - 2 Nov 2023 Complaint of sexual harassment against the Claimant - 23 Nov 2023 Disciplinary against Claimant - ~ Nov 2023 Claimant’s counter-grievance about the incident Claimant is signed off work Claimant’s home life deteriorates and is precarious - 15 Dec 2023 Claimant notified Acas - 11 Jan 2024 Acas concluded - ~ Jan 2024 Claimant’s home life stabilises - 19 Feb 2024 Time limit for sexual harassment claim expires - ~ March 2024 Claimant’s health improves - 5 Mar 2024 Meeting with respondent and union rep - 15 Mar 2024 Further investigation meeting held - 2 May 2024 Claimant dismissed Claimant notified Acas Acas concluded ET1 submitted[9]The Claimant explained that the period when he should have submitted his claim was a difficult period for him (i.e. between October 2023 when the incident took place and 19 February 2024 when the time limit expired). His home life was precarious and his mental health was poor.[10]Although his mental health improved in the period after the time limit expired (19 February 2024) he says that he was unaware that he had needed to submit his claim by 19 February 2024 and that he thought it would be more appropriate to let matters take its course with the employer first.[11]The Respondent submitted that prior to the time limit expiry, when his mental health was poor, the Claimant did have the ability to engage with the Acas process. Further, he should have been aware of the time limits because he had participated in the Acas process and had union support throughout (and attended the March meetings with his representative). Procedure & Evidence[12]I had the benefit of the Claimant’s ET1, the Respondent’s ET3 and Grounds of Resistance, the Claimant’s completed agenda and schedule of loss.[13]The Claimant read out a detailed statement that he had prepared, explaining why there had been a delay in submitting the claim of sexual harassment.
Relevant law
[14]30. S.123(1)(a) Equality Act 2010 (EqA) provides that: (1) [Subject to [sections 140A and 140B],] Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[15]By s.140B EqA, the primary time limit is extended by Early Conciliation but only if it commences before the primary time limit has expired.[16]Where a complaint is not brought in the primary limitation period, the tribunal nonetheless has jurisdiction to hear it if it is brought within such further period as the tribunal considers just and equitable. That is a very broad discretion. In exercising it, the Tribunal should have regard to all the relevant circumstances, which may include factors such as: the reason for the delay; whether the Claimant was aware of his right to claim and/or of the time limits; whether he acted promptly when he became aware of his rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morannwg University Local Health Board v Morgan [2018] ICR 1194). Leggatt LJ said this: ''There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.''[17]In Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116, the CA held that, the correct law for whether it is just and equitable to extend the time limit for presenting a discrimination complaint which is out of time because the applicant was pursuing internal proceedings was laid down by Robinson v Post Office. The fact that the employee had deferred proceedings in the tribunal while awaiting the outcome of domestic proceedings is only one factor to be taken into account.[18]The overriding objective of the Employment’s Rules of Procedure, set out at rule 3, is to enable Employment Tribunals to deal with cases fairly and justly. This includes, so far as practicable:(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. My decision[19]In making my decision I balanced the interests of and potential prejudice to the parties and also weighed them with the Tribunal’s overring objective.[20]In doing so I took into account all the relevant factors, in particular: a) The Claimant’s mental health and home life was difficult during a key period of the time limit. b) The clam was nearly three months out of time, so the Claimant hadn’t missed it by a narrow margin. c) The Claimant should have been aware that that there was a time limit (he had the benefit of ACAS and a union representative). d) From March 2024 the Claimant was well enough to able to engage with the disciplinary process. e) The claimant explained that he wanted to run through the internal process first.[21]I was particularly concerned about the prejudice to the Claimant. If I refused to extend time, he would be prevented from pursuing the claim of sexual harassment. I was conscious that the Claimant’s mental health may have prevented him from submitting his claim in time, but weighing against that(i) that that he had been well enough during that same period to engage with Acas, and(ii) that had also said that he wanted the internal process to run its course.[22]I adjourned the hearing to review the papers and create a timeline and was, on balance, having considered all the facts and of the view that the principle reason for the submission of a sexual harassment claim was his dismissal on 2 May 2024 rather than the October incident itself.[23]I considered the prejudice to the Respondent, which was limited the fact that it would have to defend the claim if I extended the time.[24]I considered the delay incurred by listing for a longer hearing and how that would impact both parties and whether it would be more fair or just to do so.[25]Considering everything in the round, I decided that it was not just and equitable to allow a three month extension of time.[26]I explained to the Claimant that although the judge at the next hearing would not be making a decision about whether he had suffered sexual harassment, the judge would be considering whether he was dismissed unfairly and the Claimant may explain what happened at October incident if he thought it was relevant to his claim for unfair dismissal. JUDGMENT having been sent to the parties on 4 December 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:[27]Mr Dolan did not formally interview Abda Mirza, another STM. His evidence was that he spoke to her because Ms Abreu Freitas had referred to Ms Mirza having to ask the Claimant to leave a member of her team alone. His evidence was that he asked Ms Mirza if it had happened, and she informed him that she had told the Claimant to stop “sniffing around” a member of her team; but that as that did not appear to relate in any way to Ms Scotting’s allegations, he did not formally interview Ms Mirza for the investigation. His evidence was that he considered that doing so would have painted the Claimant in a bad light, in way that was irrelevant to the allegations he was investigating.[28]Mr Dolan was asked in cross-examination why he did not ask other individuals nearby if they had heard the alleged comments. His evidence was that form the CCTV there was nothing to suggest that anyone else had heard the Claimant’s conversation with Ms Scotting. His evidence was that in the circumstances, interviewing those around would simply have increased the number of people who were aware of the allegation without gaining any additional evidence, which would have been unfair on the Claimant as the subject of the allegations.[29]Mr Dolan produced a report setting out the steps he had taken and the evidence he had gathered [348]. He concluded that the comments alleged had been made. He described Ms Scotting as “consistent and believable” in both of her interviews. He considered that in contrast, the Claimant had not been consistent in that he had first said he did not recall the comment about the men in Gatwick being annoyed with him, then later said that he did not make the comment. He noted, by way of mitigation, that the Claimant had explained that he was having a difficult time in his personal life. He concluded by recommending that the matter should proceed to a formal disciplinary hearing.[30]His report contained a list of the supporting documents he had gathered. That list included reference to the CCTV timeline document.[31]The Claimant was invited to a disciplinary hearing on 23 November 2023. The invitation letter noted that a copy of the evidence collated during the investigation was enclosed. The Claimant’s evidence was that he was not, in fact, sent a copy of the CCTV timeline.[32]The Claimant was unwell, so the hearing was postponed.[33]On 21 November 2023 the Claimant raised a grievance [367]. He referred in that grievance to the Respondent allowing false statements to be brought up and entered in evidence against him. He referred also to Ms Scotting having hugged him earlier in the day on 24 October 2023.[34]On 27 November 2023 the Claimant raised a further grievance [368]. Within that grievance he complained about Ms Scotting having hugged him, describing it as inappropriate physical contact. The Claimant requested that his grievances be heard before the disciplinary hearing.[35]The Claimant remained unwell. When his health improved, he attended a grievance meeting on 5 March 2024. His grievance was heard by Aaron Bassett, Stable Operations Lead. On 28 March 2024, Mr Basset wrote to the Claimant. He explained that the Claimant’s grievance was partially upheld. Of particular relevance, he partially upheld a complaint the Claimant had raised regarding confidentiality. In respect of the allegation regarding being hugged by Ms Scotting, Mr Bassett concluded that the hug was not of a sexual nature but was inappropriate. He noted, however, that in the Claimant’s position as a leader, he was required to give colleagues timely feedback to resolve matters of that nature. The remaining parts of the Claimant’s grievance were not upheld [457].[36]The Claimant appealed the outcome of the grievance [461].[37]Also on 28 March 2024, the Claimant was invited to a rescheduled disciplinary hearing, to take place on 4 April 2024 [466]. The invitation letter noted that dismissal was as possible outcome. It reminded him of his right to be accompanied to the meeting by a colleague or Trade Union representative.[38]The disciplinary meeting was chaired by Mr Lunn. Prior to the start of the meeting, Mr Lunn and the Claimant viewed the CCTV footage of the two incidents being referred to in the disciplinary process. The Claimant asked if Mr Lunn had viewed the footage of the incident when Ms Scotting hugged him. Mr Lunn indicated that he had not, because it was the subject of the Claimant’s grievance and was not relevant to the disciplinary.[39]The Claimant was given the opportunity during the meeting to give his version of events, which he did [486]. The Claimant also referred to what he described as inaccuracies in Ms Scotting’s statement, and to the CCTV footage not suggesting that she was uncomfortable around him or with anything he had said.[40]Mr Lunn produced a document in which he set out his own thought process [488]. Within that document he included his own timeline of the CCTV footage he had viewed. He referred to being able to see the Claimant at one point “visibly looking Ms Scotting up and down from behind”.[41]Mr Lunn wrote to the Claimant on 3 May 2024 to provide the outcome of the disciplinary hearing [506]. In summary, the letter said this: 41.1. In respect of the first alleged comment, he referred to the Claimant’s explanation (that he had singled Ms Scotting out for wearing non-uniform trousers was because she was also wearing a black polo shirt). He referred also to the Claimant’s explanation that the comment about looking good in black was a general comment not referring specifically to Ms Scotting. He concluded that the comment was made, and referred specifically to Ms Scotting – that is, it was not a general comment which was misconstrued by Ms Scotting. 41.2. In respect of the second alleged comment, he referred to the Claimant denying the comment having been made. He noted that he Claimant had accused Ms Scotting of lying about the comment, but noted that there was no explanation as to why Ms Scotting would have done so. He noted that because both alleged comments referred to Ms Scotting’s appearance in black trousers, he considered it more likely that the second comment had also been made. 41.3. He noted that the Claimant had not made any other uniform requests based on other members of staff being non-compliant, so he believed that the Claimant had signed Miss Scotting out. He described the comments on Ms Scotting’s physical appearance as being “abuse of power in your position as a manager in the organisation”. He concluded that the comments were unwanted and inappropriate, and constituted sexual harassment. 41.4. He referred to the live final written warning. He explained that he had therefore decided that the Claimant was summarily dismissed for gross misconduct. He reminded the Claimant of the right to appeal.[42]The Claimant wrote to the Respondent on 7 May 2024 to appeal his dismissal [510]. His appeal was heard by Steve Kelso. The appeal hearing was conducted on 27 June 2024.[43]Mr Kelso had the minutes of the disciplinary hearing, the dismissal letter, and the Claimant’s appeal. He was not given a copy of the disciplinary investigation report or the underpinning evidence, such as the investigation meeting minutes. He did, however, watch the CCTV footage.[44]Mr Kelso wrote to the Claimant on 19 August 2024 to provide the outcome to his appeal [548]. He took each of the three points raised by the Claimant in his appeal in turn: 44.1. In respect of the first point (you felt that the Company policy and the legal right to a fair investigation was not followed), he noted that the Claimant had referred to evidence which he said had not been gathered – namely CCTV footage showing interactions with Ms Scotting earlier in the day, and also a statement from Abda Mirza, another STM. Mr Kelso noted that he had viewed the additional CCTV, and did not consider it would have had any impact on the decision. He concluded that the point was not upheld. 44.2. In respect of the second point (you felt that the outcome is discriminative because you note that you are a man of colour) he referred to the Claimant having considered that there was unconscious bias at play, and referenced sexual harassment and inappropriate conduct towards him from Ms Scotting. Mr Kelso concluded that there was no unconscious bias at play. He noted that the Claimant, as a leader and manager, had a responsibility to lead by example and call out inappropriate behaviour. He concluded that the point was not upheld. 44.3. In respect of the third point (you felt that you had further evidence and witnesses that should be considered), Mr Kelso noted that the Claimant had referred to the CCTV appearing to show that Ms Scotting was not harmed or upset and returned to her duties that day visibly smiling. He also referred to screenshots of messages the Claimant had exchanged with another STM, Jessica Slade. Mr Kelso noted that situations impact different people in different ways, and body language or facial expressions cannot be taken as a sign that an individual is OK. He concluded that the point was not upheld.[45]He then said this. “As a manager of the business, you have a responsibility to remain professional at all times and lead by example. The comments that we believe you have made towards a female colleague are entirely inappropriate. I consider this as an abuse of power in your position as a manager and I have reasonable belief based on the evidence, that the alleged comments made by you were said to Maisie Scotting.”[46]Mr Lunn therefore conclude that he appeal was not upheld, and the dismissal remained in place.[47]The Claimant notified ACAS under the early conciliation process of a potential claim on 2 May 2024 and the ACAS Early Conciliation Certificate was issued on the same date. The claim was presented on the same date.
Law
[48]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the respondent under section 95.[49]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason. The section provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 shall be determined in accordance with equity and the substantial merits of the case.[50]Misconduct is a potentially fair reason for dismissal under section 98(2).[51]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in Burchell [1978] IRLR 379 and Post Office v Foley [2000] IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23, and London Ambulance Service NHS Trust v Small [2009] IRLR 563).[52]Where an employee has been dismissed following a previous final written warning, it is not for the Tribunal to reopen the final written warning and rule on whether it was legally valid or a nullity. The core test for the Tribunal remains that set out in section 98(4) of the 1996 Act. It is, however, relevant for the Tribunal to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning (Davies v Sandwell MBC [2013] EWCA Civ 135).
Conclusions
[53]I start with the final written warning. There is nothing in respect of the final written warning which suggest to me that it was inappropriate for Mr Lunn to rely on it, or appropriate for me to look behind it. The Claimant had appealed the final written warning, and his appeal had not been upheld. While the appeal outcome had noted that there were some issues with the way the investigation was carried out, it had not ultimately overturned the decision to issue the final written warning. The fact that the appeal decisionmaker had recognised issues with the process was not, in my judgment, suggestive of bad faith. Rather, it was suggestive of the very opposite, that the Claimant’s appeal was properly considered, and that the conclusion ultimately reached was that the procedural flaws identified did not undermine the decision to give a final written warning. What appeared to have happened was that in that case, the complainant’s evidence was preferred to that of the Claimant. Given the allegation against the Claimant, once the Respondent had preferred the complainant’s evidence, issuing a final written warning could not in any sense be said to be manifestly inappropriate.[54]I turn then to the reason for the dismissal. The reason relied upon was conduct. I am satisfied that Mr Lunn genuinely believed that the Claimant had committed misconduct. I reach that conclusion for the following reasons: 54.1. Mr Lunn set out in some detail in his dismissal letter why he had reached the conclusion that he had. He was faced with two contradictory versions of events. He preferred the evidence of Ms Scotting in respect of both alleged comments. He explained why he had reached that conclusion. 54.2. Having concluded that both remarks were made, he explained in his outcome letter why he considered that they constituted misconduct. His reasoning in that regard was hard to fault; the comments alleged to have been made to Ms Scotting were plainly gross misconduct, as set out in the Respondent’s policy.[55]I find also that Mr Lunn had reasonable grounds for his belief. In particular: 55.1. He was faced with two different versions of events; those of the Claimant and Ms Scotting. He was entitled to prefer Ms Scotting’s version to that of the Claimant. He was entitled not to accept the Claimant’s explanation for only speaking to Ms Scotting about wearing non-uniform trousers, and not to the other colleagues on shift in black trousers. And once he had done so, he was entitled to conclude that the Claimant had singled Ms Scotting out as a result. 55.2. He was entitled also to reach the conclusion that Ms Scotting’s presentation on the CCTV did not undermine her claim to have been upset by the Claimant’s comments.[56]I find also that the Respondent had carried out a reasonable investigation. In particular: 56.1. Ms Scotting was interviewed. 56.2. The Claimant was then interviewed, and given the opportunity to provide his version of events. 56.3. After he had done so, Mr Dolan then interviewed Ms Scotting again so as to put the Claimant’s version of events to her and challenge her evidence. 56.4. Mr Dolan viewed the CCTV footage in some detail. 56.5. It was reasonable of Mr Dolan to conclude that there were no other direct witnesses to interview, given that the CCTV footage did not suggest that anyone would have overheard the conversation. It was entirely reasonable for him to conclude, in the circumstances, that interviewing the other individuals present would only have served to have shared the allegation more widely for no evidential benefit. 56.6. It was also reasonable of him not to formally interview Ms Mirza, who had no evidence relevant to the specific allegations (and whose evidence would, at best, have cast doubt on the Claimant’s character).[57]Turning then to the fairness of the procedure generally: 57.1. It is surprising that Mr Dolan’s CCTV log was not provided to the Claimant prior to the disciplinary hearing, as it was provided to Mr Lunn. But the final version was rather bland, and Mr Lunn in any event viewed the relevant footage himself and compiled his own chronology. So Mr Dolan’s CCTV log did not form an important part of the evidence taken into account by Mr Lunn. I can therefore see no unfairness to the Claimant in him not having been provided with Mr Dolan’s CCTV log. 57.2. I do not consider that there is any issue with the same HR representative, Ms Rodrigues, being involved throughout. HR advisers are not decision-makers. Neither Mr Lunn nor Mr Kelso suggested that they had deferred to Ms Rodrigues. Both made their own decision – Mr Lunn in particular. The function of an HR adviser is to provide professional HR advice, not to step into the shoes of the decision-maker. Had Ms Rodrigues have been the one taking the decisions, her involvement throughout may well have rendered the process unfair – but there is simply nothing to suggest that that was the case. 57.3. Mr Kelso explained in his appeal outcome letter that he had concluded that he was satisfied that the Claimant had committed the misconduct alleged. Given that he did not have the statements of Ms Scotting before him, it is not quite clear to me how he reached that conclusion. Mr Kelso watched the CCTV, of course; but it had no audio. So he had no primary evidence before him of the alleged comments, only the Claimant’s denial and the (silent) CCTV. His oral evidence on the point was somewhat vague, and did not really answer the point. 57.4. It appeared that the exercise Mr Kelso was attempting to carry out was a review of Mr Lunn’s decision, rather than a complete rehearing of the disciplinary allegation. That is, in and of itself, not an unreasonable way for an appeal to be conducted. What it was clear Mr Kelso did do was to consider the points the Claimant raised (including the extra CCTV which Mr Lunn had not watched). He gave the Claimant a reasoned response to each of the three appeal points he raised. That is, he concluded that he had no reason to depart from what Mr Lunn had decided. 57.5. So while I cannot see that Mr Kelso could personally have had reasonable grounds to conclude based on the evidence before him that the misconduct alleged had occurred, what is necessary is that the Respondent overall had reasonable grounds to conclude that misconduct had occurred. I have already explained why I am satisfied that Mr Lunn did have reasonable grounds to conclude that the misconduct had occurred. 57.6. Stepping back and looking at the process as a whole: 57.6.1. The Claimant was informed of the allegation against him. 57.6.2. A reasonably detailed investigation was carried out, during which the Claimant was given the opportunity to put forward his version of events. 57.6.3. The evidence of Ms Scotting was tested against the Claimant’s version of events. 57.6.4. The Claimant was provided a copy of the evidence gathered (with the exception of the CCTV log). 57.6.5. The disciplinary process was paused while the Claimant’s grievance was investigated. 57.6.6. After the grievance had been investigated, the Claimant was invited to a disciplinary hearing. He was reminded in that letter of his right to be accompanied. 57.6.7. The Claimant was given the opportunity at the disciplinary hearing to state his case. 57.6.8. He was then given a reasonably detailed outcome in writing. 57.6.9. The Claimant was given a right of appeal, which he exercised, 57.6.10. He was reminded again of right to be accompanied at the appeal hearing. 57.6.11. Each of the Claimant’s grounds of appeal was considered, and he was given a reasoned outcome why each Mr Kelso had concluded that each of them was not upheld. 57.7. I therefore conclude that the process, as a whole, fell within the range of reasonable responses open to a reasonable employer.[58]Finally, I turn to consider whether dismissal fell within the range of reasonable responses. In doing so, I am not considering what I would have done. In that regard: 58.1. The Respondent was entitled to consider that conduct of the sort that Mr Lunn had concluded that Claimant had been guilty of was unacceptable, and constituted gross misconduct. 58.2. The Claimant had a live final written warning, which remained in force, and to which Mr Lunn was entitled to have regard. The final written warning was for broadly similar conduct. 58.3. The Claimant was in a management position, and was senior to Ms Scotting. The Respondent was entitled to treat that as an aggravating factor. 58.4. Weighing all of that up, I conclude that dismissal fell within the range of reasonable responses open to a reasonable employer.[59]It follows therefore that the dismissal was as fair one. The claim is dismissed. Approved by: