[1]The claimant’s claim of automatic unfair dismissal for asserting a statutory right is not well-founded. This means that the respondent did not unfairly dismiss the claimant for asserting a statutory right.[2]The claimant’s claim of unauthorised deductions from wages is not well-founded. This means that the respondent did not make unauthorised deductions from the claimant’s wages.[3]The claimant’s claim of unfair dismissal is well-founded. This means that the claimant was unfairly dismissed by the respondent.[4]The Tribunal will decide the remedy for unfair dismissal at a further hearing.
REASONS
[1]The claims that the claimant brings (as specified and agreed in the case management hearing on 12 September 2023) are as follows: 1.1. Unfair dismissal contrary to section 98 of the Employment Rights Act 1996; 1.2. Automatic unfair dismissal contrary to section 104 of the Employment Rights Act 1996; and 1.3. Unlawful deductions from wages.[2]The issues that were initially agreed in the case management hearing on 12 September 2023 and were slightly amended on the first day of the final hearing are as follows: Unfair dismissal (including automatic unfair dismissal) 2.1. Was the claimant dismissed? The parties agree that the claimant was dismissed. 2.2. Was the reason or principal reason for dismissal that the claimant alleged the respondent had infringed a right of his that was a relevant statutory right? The claimant says that on 1 September 2022 he alleged that the respondent had breached the health and safety duties owed to the claimant by failing to ensure that proper security controls governing the security server and the security’s team’s use of body cameras were in place. If so, the claimant will be regarded as unfairly dismissed. 2.3. What was the reason or principal reason for dismissal? The respondent says that the reason was a substantial reason capable of justifying dismissal, namely thirdparty pressure. 2.4. Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? 2.5. Did the respondent follow a fair procedure? Remedy for unfair dismissal 2.6. If there is a compensatory award, how much should it be? The Tribunal will decide: 2.6.1. What financial losses has the dismissal caused the claimant? 2.6.2. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 2.6.3. If not, for what period of loss should the claimant be compensated? 2.6.4. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 2.6.5. If so, should the claimant’s compensation be reduced? By how much? 2.6.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 2.6.7. Did the respondent or the claimant unreasonably fail to comply with it by? 2.6.8. If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 2.6.9. If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? 2.6.10. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? 2.6.11. Does the statutory cap apply? 2.6.12. What basic award is payable to the claimant, if any? 2.6.13. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? 2.6.14. If so, to what extent? Unauthorised deductions from wages 2.7. Did the respondent make unauthorised deductions from the claimant’s wages, and if so how much was deducted? 2.8. The claimant says that unauthorised deductions were made to his wages after he was suspended on 12 May 2022. Remedy 2.9. How much should the claimant be awarded in respect of any unauthorised deductions? PROCEDURE, DOCUMENTS AND EVIDENCE HEARD
Remedy
[3]There was a bundle of documents of 364 pages. References to page numbers are to the agreed bundle of documents.[4]There were separate written witness statements. The claimant and Mr Cheney (who was formerly a security manager at the respondent at the material time) gave evidence for the claimant. Mr Skinner (Company Secretary and Legal Counsel for the respondent), Mrs Johnson (formerly a HR Business Partner at the respondent at the material time) and Miss Louw (formerly a HR Manager at the respondent at the material time), gave evidence for the respondent.[5]Although there were claims of automatic unfair dismissal and unfair dismissal (and there was no dispute about whether the claimant had been dismissed) the claimant and Mr Cheney gave evidence first. This was decided after discussion with Mr Pereira and Mr Ramsbottom. I decided it was appropriate to do so as the case management orders made at the case management hearing on 12 September 2023 had included a timetable with the claimant giving evidence first and this was what the parties had prepared for and expected.[6]Mr Cheney was the first witness and in fact affirmed his evidence in retrospect. This was because initially the affirmation for an interpreter had been placed on the witness table and this was not spotted by either Mr Ramsbottom or me until the claimant started saying the affirmation. Although I considered that the interpreter affirmation was still binding on Mr Cheney’s conscience I decided to recall Mr Cheney to swear the witness affirmation in retrospect.[7]On day three of the hearing after evidence had closed and the parties had been preparing their submissions to present to the Tribunal at 11 am on day three of the hearing Mr Pereira made an application to recall Mr Skinner as witness to ask Mr Skinner four questions concerning data protection processes at the respondent. Mr Pereira after evidence had closed at the end of day two of the hearing had found various documents in the public domain, including the respondent’s data protection policy. The respondent objected to the recall of Mr Skinner after evidence had closed because Mr Pereira had already been given opportunity to cross-examine Mr Skinner and this would give the claimant a second bite of the cherry. I checked with Mr Pereira whether there was any specific reason that had prevented him from accessing the documents available in the public domain before the start of the final hearing. Mr Pereira was unable to provide a reason.[8]I decided, in accordance with dealing with cases fairly and justly (rule 3 of the Employment Tribunals Rules of Procedure 2024), that it was not in the interests of justice to allow the claimant’s application to recall Mr Skinner after evidence had closed.
FACTS
[9]The claimant commenced employment as a security officer with Corps Security (UK) Limited on 17 November 2017. There is a written contract of employment [54-58].[10]In the contract of employment under heading “sickness absence and pay” at clause 12.2 it states: “During absence for illness (which includes injury or disability) you may be entitled to receive Statutory Sick Pay, and subject to management discretion Company Sick Pay, in accordance with, and subject to, the provisions outlined in the Colleague Handbook and provided you have followed the reporting process correctly.” [55].[11]In the contract of employment under the heading “termination of employment”, it “23.4 Corps Security will have the right to suspend you with or without pay pending any investigation into any circumstances which may give rise to a right to Corps Security to terminate your employment, for such a period as reasonably necessary for the purpose of that investigation.” [57].[12]The claimant’s employment transferred to the respondent under the Transfer of Undertakings (Protection of Employment) Regulations 2006 on 1 March 2020 [133- 134]. The contract of employment [54-58] remained in effect after the transfer apart from the changes listed in the letter dated 9 March 2020 [133-134].[13]The respondent, however, did inform the claimant in writing that, “It is the intention of ICTS to implement the ICTS handbook and policy and procedures following the transfer. Details of how to access the handbook will be issued post-transfer.” [133- 134]. The employees were provided with the respondent’s handbook electronically. Miss Louw in cross-examination considered this would have been in April 2020. The claimant has not said he did not receive the handbook [59-132]. I find on the balance of probabilities that the claimant did receive the handbook [59-132] after the transfer.[14]The respondent’s handbook and policy and procedure dated October 2016 [59- 132] states the following: “This employee handbook, together with your principal statement, sets out your main terms and conditions of employment. For the avoidance of doubt, please note that the handbook does not form part of your contract of employment. The standards we adopt are not negotiable. Company information, policies and procedures mentioned in this handbook provide you with information about employment conditions and work practices. If there are any differences between your principal statement and the handbook, the terms in the principal statement take precedence.” [66].[15]It further states: “Third Party Pressure Your ongoing employment may be conditional on the approval and continuing support of third party clients. This is particularly influential where you work at or have occasion to visit their premises. If clients withdraw support for you to attend their premises, we have no alternative other than removing you. To facilitate this, we may suspend you with pay if necessary. A client may request your removal from their premises or contract with or without explanation. Where this happens, we may make representations to request the client to reconsider their decision. We may temporarily redeploy you or place you on special (paid) leave while we do this. We will discuss the matter with you personally and make you aware of any alternative employment that may be available. We will also advise you of any current vacancies and you are free to apply for these in the normal way. If a client alleges misconduct or lack of capability on your part, we will investigate their complaint. If we believe further action is necessary, we will utilise the provisions of our disciplinary/capability procedure. In the most serious cases, we may summarily dismiss you. We do this where, following investigation, we believe your actions amounted to gross misconduct. Where a client withdraws their support, it may not be possible for you to work with them in any event. In such circumstances we will consider possible alternatives to maintain your employment. If in our sole opinion no suitable alternatives exist, we reserve the right to terminate your employment. In such circumstances we will place you on garden leave during your contractual notice period. As an alternative we may pay you in lieu of notice.” [81][16]Under the section Disciplinary Procedure one of the general principles states: “We may suspend you on full pay while we investigate more serious allegations. Such action is entirely precautionary and not a pre-judgement of the outcome.” [117].[17]In respect of sick pay it states: “We are responsible for the payment of statutory sick pay (SSP) during authorised sickness/ injury absence…” [103].[18]The claimant has a history of anxiety and stress for which he has at times received medical treatment from approximately 2012 onwards. The claimant says that after his employment was transferred to the respondent he did fill out a form giving details of his relevant medical history. There is no form in the bundle. The employee liability information provided by Corps Security (UK) Limited did not include any details concerning the claimant’s history of anxiety and stress [284- 287]. Mr Skinner says in May 2022 he was unaware of the claimant’s history of anxiety and stress. As there is no supporting document confirming that the respondent knew about the claimant’s anxiety and stress in May 2022 I find that neither the respondent nor Mr Skinner knew about the claimant’s anxiety and stress in May 2022.[19]There is a contract between Croydon Health Services NHS Trust (“CUH”) and the respondent and extracts are in the bundle [135-138]. It states: “5.13 The Authority may at any time request that the Supplier remove and replace any member of Staff from the provision of the Services, provided always that the Authority will act reasonably in making such a request. Prior to making any such request the Authority shall raise with the Supplier the Authority’s concerns regarding the member of Staff in question with the aim of seeking a mutually agreeable resolution. The Authority shall be under no obligation to have such prior discussion should the Authority have concerns regarding patient or service user safety.”[20]In late 2021 the claimant applied to be a security supervisor and then was a supervisor of one of the four teams at CUH. The claimant had three other members of security in his team.[21]After the claimant transferred to the respondent the respondent provided bodycams to all the security personnel working at CUH.[22]The bodycam would be switched on manually by the security officer if there was an incident.[23]All security personnel (approximately 16 employees comprised of four teams of four) had access to the server (located in the control room at CUH) to download bodycam footage onto it.[24]Footage was downloaded to the server if there was an incident. The claimant as supervisor of his team of three would not have had the time to download the bodycam footage for his team in addition to everything else that he needed to do as security supervisor (e.g. completing paperwork and other administration/ supervisory work).[25]There was, therefore, an element of trust in the security officers by the respondent that they would download the bodycam footage to the server and not misuse the bodycam footage.[26]There was no formal training provided by the respondent in respect of the bodycams and the server at CUH. Mr Cheney said the process in respect of incidents at CUH was for the security officer to start to write a report about the incident, then download the bodycam footage onto the server and if needed rewatch the footage to complete the written report. The process was from both the respondent and the NHS trust running CUH.[27]On 12 May 2022 the claimant was arrested when he attended work early at CUH. The claimant says that he was arrested on suspicion of perverting the course of justice and that to the best of his recollection he was accused of deleting CCTV footage and falsifying reports. The respondent says that it has never been informed by the police (or by any other official channel) why the claimant was arrested.[28]The information that the claimant provided to the respondent on 29 June 2022 (see below) was that he had been arrested on suspicion of perverting the course of justice and that it was another employee that had caused all of it and it was about CCTV footage.[29]Mr Cheney says he understands that the other employee accessed the server at CUH to then film footage of CCTV possibly using his mobile phone camera which he then apparently illegally shared.[30]I, therefore, find that the claimant was arrested on suspicion of perverting the course of justice and the reason arose out of or was connected with allegations of misuse of CCTV footage.[31]In fact, the 16 employees comprising the four teams of security personnel of the respondent placed at CUH were arrested by the police. Other employees at the respondent were arrested too.[32]Detective Sergent Suffolk emailed A Fernandes on 16 May 2022 at 15:55 informing them that the police had arrested 16 employees of the respondent. Further the police informed A Fernandes that all the respondent’s staff at that point had been bailed with conditions not to contact anyone at the respondent and not to attend work at CUH [141].[33]DS Suffolk confirmed that the claimant was one of the respondent’s employees who had been bailed with conditions in an email to A Fernandes and Mr Skinner at 16.54 on 16 May 2022 [139].[34]On 12 May 2022 the claimant was placed on unpaid suspension by the respondent. The decision was taken by the executive team at the respondent (which included Mr Skinner). The claimant was informed of this by letter dated 18 May 2022 sent by Ms Choudhury, Employee Relations HR business partner [143]. The letter “I write to confirm that you have been placed on unpaid suspension to allow an investigation to take place following an incident that has taken place at our client’s site, Croydon Hospital. We have been informed of a serious criminal matter which the police are currently investigating. We understand that the police are investigating a criminal allegation and that you have been arrested and released on bail. I have been advised that it is a condition of your bail that you cannot contact anyone at ICTS (UK) Limited and are not allowed to attend your place of work, Croydon University Hospital. I am therefore writing to acknowledge that you will not be able to contact us to report your absence until further notice and to acknowledge that due to these bail conditions, you will not be able to fulfil your contractual obligations to attend work. As you will not be able to attend your place of work due to these restrictions, you will be placed on unpaid leave from Thursday 12 May 2022.”[35]The letter [143] also refers to support being available through the respondent’s Employee Assistance Program “EAP” and that the respondent recognised that this would be a difficult and distressing time for the claimant.[36]Mr Skinner emailed DS Suffolk on 8 June 2022 for further information [149-150]. DS Suffolk replied on 8 June 2022 by email [148-149]. This email states: “The suspects who returned today have been released under investigation, this means that they are still being investigated and are still part of the investigation. They are not finished with from our point of view, the investigation could take 6-12 months and until this time I suggest that they do not return to work. We still do not know who is involved and who is innocent.” … “All other will be released under investigation, there are no suspects who are released in the sense of no further action.[37]The email [148-149] also confirmed that only one individual was still on bail (and therefore still subject to bail conditions). This individual was not the claimant.[38]Mr Skinner attempted to get further information from DS Barrett and expressed concerns about not being able to have the arrested staff work for 6 -12 months (by email on 8 June 2022 [144]).[39]On 9 June 2022 CUH sent a breach notice to the respondent [153-155]. This “Given the arrests which took place on 12 May 2022, the Trust is exercising its right to issue a breach notice by way of letter…” “This letter is the formal breach notice.”[40]On 10 June 2022 the claimant emailed Miss Louw [156]. This email states: “My name is Nick Darling and I am a Supervisor at Croydon University Hospital. I was arrested with some of my other colleagues on the 12/05/2022 under Sucpision of perverting the course of Justice. I was put on bale conditions, one of these was not to contact ICTS. The bale conditions have now been lifted. Iam not just under investigation. I would like to add that I am innocent of these accuations. Could I please have a copy of my contract and also the ICTS policy which states why some one would not be paid whilst on suspension please?”[41]The claimant was placed on paid suspension on 10 June 2022. He was informed by the respondent in retrospect of this on 24 June 2022 [169-170].[42]Mr Cheney also wrote to the HR department at the respondent on 15 June 2022 [157-158] querying why the security employees were on unpaid suspension. The cover email dated 16 June 2022 sending the letter [160] said the letter was a collective grievance. The collective grievance [157-158] did not raise any issues about access to the server at CUH being available to all security employees or the lack of training in respect of the bodycams.[43]One issue that collective grievance [157-158] did refer to was the mental wellbeing of the claimant (and the other employees affected): “This will cause financial struggles with all staff involved, especially those that have mortgages and children. This will then cause a decline in their mental health…” “… I believe that it’s ICTS responsibility to think about their staff’s welfare. Please pay the staff’s suspension in full and arrange regular welfare calls. We are currently under extreme stress and many of the staff are suffering with depression in relation to this incident. Please get behind your staff and show you care.”[44]On 16 June 2022 (this was incorrectly dated on document as 16 July 2022) the respondent’s response to CUH’s breach notice was sent to Mr Carter-Shaw at CUH [166-167]. This states: “In addition to the above, it has come to our attention that your Steve Lamley (Security Manager) has been in contact with our Matthew Chayne (Security Site Manager) and informed him that he is happy for all of the individuals released from Police bail to return to work. I would be grateful if you could you confirm, as a matter of urgency, that this is the case.”[45]In cross-examination Mr Skinner confirmed that if CUH had been happy for the claimant to return to work at CUH (after he had been released under investigation) then the respondent would have felt comfortable for the claimant to return to work at the CUH site (notwithstanding the advice provided by the police that the employees released under investigation should not return to work at CUH while they were still under investigation). Further in cross-examination Mr Skinner stated that this was because at the time he considered that CUH were in closer contact with (and getting more information from) the police.[46]On 24 June 2022 the respondent invited the claimant to an investigation meeting to take place on 27 June 2022 [169-170]. This states: “Notwithstanding the above, we have been informed by the Police that you are currently still under investigation in relation to serious criminal matters and that these investigations could take up to 12 months to conclude. We have also been advised by the Police that it is not appropriate for you to continue working whilst investigations are taking place. In order to investigate these matters further, I feel that it would be beneficial to speak with you in more detail. This will ensure we can establish all of the facts surrounding the matter and give you the opportunity to put forward your explanations and points of view. You should send any documentary evidence that you wish us to consider at the meeting to me, either in advance of the meeting (email address below), or have it available for me to view as part of the meeting.” … “Please be aware that, as a result, one outcome of the meeting may be that your employment is terminated, with notice.”[47]The claimant was again advised of the EAP in this letter [169-170] too.[48]The letter sent to the claimant [169-170] inviting him to the investigation meeting was a template that had been drafted by Mr Skinner (and the same letter was sent to all the employees involved in the incident). Mr Skinner says the reason why the letter stated that one outcome of the meeting may be that the claimant’s employment could be terminated was because the respondent at the time had no understanding about what had happened. The respondent did not know what the alleged offence was and/ or who had been identified as being involved. Mr Skinner says that there was a risk that the investigation meetings would uncover that a serious crime had been committed and that one or more of the employees may admit to committing a serious crime. Mr Skinner also says that if that had happened then CUH would most likely have immediately insisted that the employee not be allowed back on site. The inclusion of the sentence was to prepare for all eventualities and reduce the need to have duplicate meetings.[49]Mrs Johnson had just joined the respondent (on 6 June 2022) and she was tasked with organising and holding investigation meetings with all the respondent’s employees who had been arrested.[50]On 24 June 2022 the claimant emailed Mrs Johnson requesting that his meeting be rescheduled due to his union representative not being available [179]. On the same date Mrs Johnson responded to claimant.[51]On 27 June 2022 the claimant did not attend investigation meeting.[52]On 27 June 2022 the respondent invited the claimant to a rescheduled investigation meeting to take place on 29 June 2022 [181].[53]After or on 27 June 2022 the claimant wrote to Mrs Johnson by email informing her of his anxiety, that he was putting on weight, was having suicidal thoughts and had been referred to counselling [176]. I find that at this point both Mrs Johnson and the respondent were aware that the claimant, in particular, had anxiety and he was suffering from symptoms at the end of June 2022.[54]Mrs Johnson did speak to the claimant on the telephone a number of times during this period to reassure him that the meeting that she was trying to arrange with him was fact-finding and not to be scared, to just come and talk to her. Mrs Johnson was certain that after she received the email [176] from the claimant about his anxiety that she did telephone him and spoke to him. There are no notes of that conversation.[55]Mrs Johnson emailed the claimant’s union representative on 28 June 2022 [171]. This states: “Hi Janet, I really do have empathy with how stressful this must be for Nicholas, but the fact remains that this is an informal meeting & therefore Nicholas doesn’t have the right to be accompanied. However, I do not want to delay the process anymore and therefore I will agree to record the meeting, on this occasion, in an attempt to be fair & reasonable. It will be shared within the chat function of the Teams meeting & Nicholas can share it with you. Notes will also be taken, written up & shared following the meeting.”[56]The investigation meeting with the claimant took place on 29 June 2022, Mrs Johnson was the chair and Ms Walmsley was the note-taker, there are minutes [182-189] and the meeting was recorded.[57]During the meeting Mrs Johnson explained the following to the claimant: “As a security company we provide protection services to our clients, they put us in a position of trust to protect them. Until a person has been formally cleared (which the police are indicating could take up to 12 months) It Is difficult for us to be able to put staff, who are still currently under investigation by the police, and who the police have recommended that they don’t come back to work, in a position of trust. In terms of the client, they have indicated, verbally, that they would not be willing for the individuals who are currently still under investigation to return to site. However, we have not had formall confirmation of that and we have requested a formal written response from them, which we hope to receive early next week. If we are not able to put you back on that site we will start a search for alternative vacancies. However, this may be limited to non security roles, whilst the investigation is ongoing. However, in the first instance, if you could look at whether you would be interested in any of the roles on our careers website (I will send you a link separately) and let me know if there are any that of interest to you, we can take it from there.”[58]Mrs Johnson also explained in the context of frequently asked questions why the claimant had not been paid from 12 May 2022 until he notified the respondent that he was no longer subject to bail conditions: “You failed to make the business aware that your bail had been lifted, which allowed you to make contact with us. Despite this, you have failed to make contact with the business, as is required in line with your Terms & Conditions of Employment should you not be able to attend work. Therefore, your absence will be classed as unauthorised up to the point that you have informed us that your bail conditions were removed. When you were the subject of the bail conditions, it was these that were preventing you from working, not the actions of ICTS. Whatever the category of absence suspension/unpaid leave etc, it was the bail conditions that was preventing you from working, not the actions of ICTS”[59]During the investigation meeting the claimant confirmed that on 12 May 2022 he had been arrested on suspicion of perverting the course of justice. He also confirmed that another employee had been arrested a week prior and it was something to do with CCTV footage: “Let me think back, it was Ben who caused all this, he was arrested about a week before, but I can’t remember what the police said he was arrested for. I was in the office as I am a supervisor as I said I can’t remember what he was arrested for but it’s about the CCTV footage.”[60]The claimant also confirmed his current situation and how it had been left with the police: “I had bail conditions which were not to go to the hospital and couldn’t contact work indirectly or directly any member of ICTS security. I honoured and respected the bail conditions, I then reported to the police station for my bail reporting on 8/6/2022, I spoke to my solicitor who said I didn’t need to go in and my solicitor handed me a letter to say that I had been released from bail on 8/6/2022 but that I am still under investigation.” …[61]Further on in the meeting the minutes state the following: “JJ – Do you have any suggestions as to how we can resolve the issues going forward?” “ND – That is a god question really, I think you have been told that the investigation can take up to a year, I presume that is from May, so I presume it is just a waiting game. I haven’t done anything wrong, but it might not be until I get NFA which is just a matter of time. JJ – I will let you know the company’s position and then you can let me know if you have any questions for me ND – Ok”[62]Mrs Johnson further repeated CUH’s position during the meeting: “In terms of the client, they have indicated, verbally, that they would not be willing for the individuals who are currently still under investigation to return to site. However, we have not had formal confirmation of that, and we have requested a formal written response from them, which we hope to receive at some point this week. ND - Right ok JJ – So as you can see, we are in a catch 22 situation If we are not able to put you back on that site, we will start a search for alternative vacancies. However, this may be limited to non-security roles, whilst the investigation is ongoing. However, in the first instance, if you could look at whether you would be interested in any of the roles on our career’s website (I will send you a link separately) and let me know if there are any that of interest to you, we can take it from there, do you have any other questions?”[63]During the investigation meeting itself at approximately this point the claimant queried whether the suspension pay for the period he was subject to bail conditions would be paid once the investigation was over.[64]Mrs Johnson answered that the claimant’s absence at that time was classified as unauthorised absence because the claimant did not notify the respondent of his absence or the reason for it. Further that it was the bail conditions that had prevented claimant from working, not any action taken by the respondent.[65]Then later in the meeting the minutes state: “JJ – Is there any other support we can offer you as you have aid you are struggling with your mental health, in letters you would have received from us it provides details of the EAP, I don’t know if you have contacted them but if not, I would urge you too, it is a confidential support line, they are all trained professionals ND – I have spoken to my doctor who is going to be putting me forward to counselling sessions, which I have had before. The EAP I haven’t felt like contacting them before, I suffer from anxiety so when that is bad it makes it hard to ask for support or do anything JJ – The EAP would be quicker than the NHS, it is completely confidential, so we have no visibility of who calls them or wat they call about; It is run by a third party so is completely separate from ICTS. I know you are still working things through; the NHS are great but they can take a while due to waiting lists so you might be able to get some support quicker through the EAP while you are waiting ND – Thanks JJ, thanks for that” … “ND – Sorry JJ but all I have to do is look at the vacancies JJ – Yes, I will send the link over to you, but I need to make you aware that it might be quite limited as you can’t apply for anything in any healthcare setting so hospitals, not colleges or universities due to the nature of the ongoing investigation you are under”[66]The list of roles that were available on 29 June 2022 [216-219] do not show an identifiable location on the hard copy. The claimant had been told by Mrs Johnson in the meeting on 29 June 2022 that he could not apply for anything in healthcare nor in colleges or universities. Mrs Johnson had also explained in the meeting on 29 June 2022 that the claimant may also be limited to non-security roles, but that the claimant should look at the roles and then if he was interested in any of the roles it could be taken further.[67]The respondent says that the reasons for these restrictions in what alternative employment the claimant could apply for was because a security role is one of a position of trust and the claimant was still under investigation for perverting the course of justice. Further the respondent says that it would have been irresponsible and a breach of the respondent’s duty to their clients and members of the public to have placed the claimant into another security role.[68]The roles were continuously being updated on the respondent’s website as new roles became available.[69]The claimant did look at the roles but none were within a reasonable distance of his home and some were not what he considered to be his skillset. For example, vacancies for cleaners. Vacancies that did match his skillset were in Slough or even further. The claimant does not drive and the travel time to Slough would be at least one and a half hours to two hours.[70]The claimant also did not advantage of the EAP that he had been signposted to by Mrs Johnson. This was because at the time he found it very difficult to talk to anyone about the situation and he did not feel up to it.[71]Conflicting information was provided by the respondent’s employees during the initial investigation meetings. The claimant’s investigation meeting on 29 June 2022 was the last initial investigation meeting that Mrs Johnson conducted with the employees under investigation by the police.[72]On 11 July 2022 Mr Skinner emailed the police to ask whether there was any update or change in police’s position [190].[73]Also, on 11 July 2022, Mr Skinner wrote to CUH [161] to chase them for a response. This states: “The pressing matter is the return to work of the staff members. I appreciate you have a right under clause 5.13 of the contract to request the removal of any member of our staff. However, given the comments made by Steve Lamley to our Matt Cheyne, unless I hear otherwise within the next 48 hours, I must assume that the Trust is happy for the individuals who are legally able to return to work at the hospital, to actually return.[74]The email from CUH to the respondent dated 18 July 2022 [193-194], states: “Thanks for your email last week. I will be replying under separate cover to the notice response that you sent, so please look out for that when it issues. On the matter of the arrested ICTS staff returning to site, Andy Kynoch confirmed at a meeting with Matthew Kershaw on 31 May that ICTS would not return the arrested staff to the Croydon site, but would seek to redeploy then elsewhere within the ICTS portfolio. We continue to hold the view that ICTS should continue with this original course of action.”[75]Mr Skinner emailed CUH on 19 July 2022 asking for further clarification [192]. A letter was sent from CUH to the respondent on 22 July 2022 [197-198]. This “The Trust will not permit the staff who were released by the police but continue to be under investigation to return to site unless and until the police have concluded the investigation and determined there is no case for them to answer. Given the offences are work and site based, to allow the staff back on site in their old roles is at risk of prejudicing the investigation which would contravene standard RUI conditions.”[76]The respondent says that given the police had indicated in May 2022 that their investigation could take six to twelve months it was not possible for the respondent to continue to keep the employees who had been released under investigation (including the claimant) suspended on full pay for that length of time due to the costs of doing so and the disruption to the business.[77]The respondent also says that while the claimant was still released under investigation it decided that any alternative role would need to be a non-security role for that period. This was because a security role is one of a position of trust. The claimant at that time was being investigated for a serious crime and the respondent at that time did not know which of its employees were involved. The respondent decided it would be irresponsible and a breach of their duty to their clients and members of public to place the claimant in a security role while he was still under investigation.[78]On 29 July 2022 the respondent invited the claimant to another meeting on 2 August 2022 [200].[79]On 1 August 2022 the claimant commenced a period of sickness absence and notified the respondent of this on 1 August 2022 [200]. Mrs Johnson replied to the claimant’s email [199] pointing out that the claimant’s fit note did not make it clear that he could not attend a work meeting during the period that he was signed off work. Mrs Johnson’s email [199] also states: “I am also mindful that you are representing the collective grievance. If you are signed off until the end of August, I am concerned that this will cause further delay. This, added with the struggle I know you have said that you have had to make contact with the rest of the guys to gain consent, I am sure is a contributor to you. Therefore, in an attempt to eleviate this stress from you, may I suggest that we do a written response to your grievance to you & those that we have consent from as I do appreciate that the situation is causing stress and anxiety to you. If you are in agreement with this approach please let me know & I will proceed”.[80]On 4 August 2022 the respondent invited the claimant to a rescheduled hearing on 10 August 2022 [203].[81]On 7 August 2022 the claimant emailed Mrs Johnson [202-203]. This states: “…I have had a long-standing anxiety problem for which I had at times received medical treatment. However, before this event I had been managing the problem successfully for a number of years. On reflection I should not have perhaps agreed as a Supervisor to represent the other guys, who have been wrongfully caught up in this unpleasant affair, as it has probably added to the stress and anxiety of all this. The whole situation, since it started in May of this year has caused serious mental health issues financial anxiety and stress. My GP recognised that my condition has significantly worsened causing loss of sleep, overeating, increasing overweight and other problems. The sick note was given to allow a period of time for me to avoid situations which would cause me increased anxiety and stress. I do not see how I could continue to represent others in a collective grievance procedure. Your suggestion as to a written response is a matter for you. Have you any idea of the stress I have been put under since I was wrongfully arrested. Since the bail conditions preventing me from contacting anybody were dropped, I've have felt under constant pressure from you in every respect. The latest being the extremely short notice of the proposed meeting (26/07/2022) i.e. Friday afternoon when the opportunity to seek advice and representation was bound to be limited due to the weekend. Quite frankly, I am unable to deal with this anymore due to the stress and anxiety it is causing. Incidentally since I wrote the above, I have received your further email sent on 04/08/2022 and I have been trying to get advice and legal representation. I have also called the GP’s surgery and was advised by them that a further certificate is completely unnecessary but if the Company insist then they said will provide confirmation that the doctor has certified me as not fit as you suggest at this time.”[82]I find that Mrs Johnson and the respondent knew in August 2022 that the claimant’s anxiety was a long-standing problem.[83]On 8 August 2022 Mrs Johnson emailed the claimant [204-205] to reiterate that the meeting on 10 August 2022 was a required meeting and she encouraged him to engage. This email states: “The ongoing individual process and your reference to feeling under pressure, it is not my intention to make you feel pressured by this process and would be happy to communicate with you via your preferred means. With regards to the follow up meetings, this is a required meeting, and I would encourage you to attend or advise a suitable time and date that you can attend. I am mindful that your stress and anxiety is being heightened and I am sure that it is linked to this process, I really do not wish to drag out a process longer than necessary. Hence my recommendation to discuss this on Wednesday 10th August at 10.00, we are happy to support you through the meeting and you are welcomed to be accompanied by the agreed companion.”[84]On 9 August 2022 the claimant emailed Mrs Johnson [204]. This emails states: “… Secondly, it was a week after the police arrested this man that I was then wrongfully arrested. If this man has told the police that I or any of the other security staff were implicated where is the evidence for this. By default, the company allowed anyone free access to the security server but there is no way I could’ve known what this man was doing. As a supervisor of one team of four men I would not have had the time to examine all the stuff that was uploaded to the security server by all the other body cams issued to the whole security dept.” … “…The fact is ICTS have done nothing and after some 3 months I am left still suspended, and any alternative work ICTS is offering would not be on a par in relation to my contract. (ie,less pay, more travel and expense and time etc.) I am sorry to say that these e-mails are not helping me at all and any meetings at this time seem to me as something that I will only add to my present anxiety. Therefore, so that I can get further avoid unnecessary stress can you please explain a) exactly what it is you wish to discuss, b) exactly what it is you propose to do with regard to my being left in the situation.”[85]In Mrs Johnsons’ reply [208] she explained that the correspondence was not aimed at hindering the claimant but to help the claimant. Her reply also states: … “As to the second part of your question there is a separate process that is running alongside your grievance in which your role with the company is being discussed with you, namely, to look at alternates as you are aware. We would also look to go through this formally with you and should you wish to be accompanied to either of these meetings or discussions then this would be possible. Again, I am keen to move this matter along, thank you Nick.”[86]The meeting rescheduled for 10 August 2022 did not occur.[87]The claimant was then signed off as being not fit for work due to anxiety from 29 August 2022 to 29 September 2022 [214].[88]In cross-examination Mrs Johnson explained that she had made telephone calls within the business to try to find alternative employment for the claimant and the other members of the security team who were affected by CUH’s request to remove them from CUH’s site. There is no documentary evidence to support this assertion and so, I find on the balance of probabilities that no such steps were taken by Mrs Johnson.[89]On 30 August 2022 the respondent invited the claimant to a formal meeting [215] to take place on 1 September 2022. This states: “… Our client, Croydon University Hospital have now written to us on 22nd July confirming that they will not permit any ICTS Officers who have been released under investigation to return to their site. In line with our contractual obligations to our client, we are required to honour this request.”[90]On 1 September 2022 the claimant’s solicitor sent a letter to the respondent [223- 225]. This states: “…You have also failed to provide him with a Written Statement of the Terms and Conditions of his employment (as you are required to do by section 1 of the Employment Rights Act 1996), despite this being requested…” … “You are of course aware that out Client remains signed off work as a result of the anxiety and stress brought about by the Company’s mismanagement of the current situation. Our instructions are that the distress and financial loss caused to him have been due to the Company’s failure to ensure proper security controls governing the security server and the security team’s use of body cameras. This allowed a criminal offence to be committed by a member of staff resulting in: a) serious damage to our Client, Hospital personnel and/or patients and public; b) wrongful arrest and imprisonment; c) imposition of severe bail conditions preventing any contact for help or advice causing severe anxiety to our Client and other members of the security team; d) breach of contract, i.e. suspension without investigation and without pay (for 5 weeks, which has not been refunded) also causing serious financial anxieties; e) breach of your duties(i) to safeguard the health and wellbeing of your employees &(ii) of mutual trust and confidence resulting in severe anguish and mental injury to our Client and damage to his reputation and future work prospects. These anxieties are likely to be long-term due to the delay in the Police investigations and even beyond before full recovery of reasonable mental health.”[91]The other issues that were raised in the claimant’s solicitor’s letter dated 1 September 2022 included: 91.1. That the respondent had not carried out an adequate investigation prior to suspending the claimant and that the respondent did not have a contractual right to suspend the claimant; 91.2. That the respondent by suspending the claimant had imposed a highly unfair and inappropriate disciplinary sanction; 91.3. That the respondent had unreasonably refused to allow the claimant to be accompanied to disciplinary investigation meeting; 91.4. That the respondent had breached a fundamental term of the contract by suspending the claimant and had breached the implied term of mutual trust and confidence; and 91.5. The respondent was in breach of its duty to safeguard the health and wellbeing of the claimant.[92]At this point the claimant was the only employee (out of those employees with whom Mrs Johnson had investigation meetings) who had not found alternative employment and/ or being dismissed.[93]On 7 September 2022 the respondent invited the claimant to a re-scheduled formal meeting [228-229] to take place on 9 September 2022. The claimant had not been able to attend the meetings scheduled for 2 August 2022, 10 August 2022 or 1[94]Mrs Johnson wrote the letter dated 7 September 2022 [228-229] but Miss Louw was going to chair the meeting with the claimant because Mrs Johnson was going to be absent on annual leave at the relevant time.[95]The letter [228-229] repeated what had been said in the letter dated 30 August 2022 [215] concerning CUH not permitting any ICTS Officers who had been released under investigation to return to their site. It also states: “…I must make you aware that if you do not respond to this letter and provide medical evidence of your inability to participate in the meeting then we will schedule a further meeting to take place on Monday 12th September 2022 at 9am, again via TEAMS. Alternatively, you may take one of the following options:• Send written representations of your response to the matters of concern which were itemised in our letter to you of 30th August 2022, a copy of which is attached;• Send a representative to speak on your behalf at the meeting. This representative must be either a fellow employee or trade union official.• Send your representative to the meeting to read a prepared submission from you and to speak on your behalf with your responses to the matters of concern.• Be prepared to participate in the meeting by being available on the telephone. Whilst I am sympathetic and mindful of your medical condition, I also need to take into account that your symptoms could be related to the current ongoing process. I believe that it is clearly in your interests therefore, as well as in the interests of the other people involved, to bring matters to a reasonably swift conclusion. I must point out to you that if no suitable alternative position can be found for you, your employment may be terminated.”[96]The claimant confirmed that he was happy for the letter dated 1 September 2022 from his solicitor [223-225] to stand as his written submissions to the formal meeting. This was confirmed in an email from the claimant to Miss Louw and Mr Dugdale on 9 September 2022 [230].[97]The respondent’s dismissal letter was sent to the claimant on 12 September 2022 [239-240] by email [237-238]. This states: “…The matters I wished to discuss during the meeting you are invited to are:• We have been informed by the Police that you are currently under investigation in relation to serious criminal matters and that these investigations could take up to 12 months to conclude.• We have been advised by the Police that it is not appropriate for you to continue working whilst the investigations are taking place. As a result of the above concerns, our client Croydon University Hospital had written to use on 22nd July 2022 confirming that they no longer wish for you to continue working in your current capacity, on their site. We conducted a full investigation into the issues raised and have discussed the impact of this with the client, however they have stated your removal from the site in writing and will not consider any alternate. It is regrettable that our client would not permit any ICTS Officers who have been released under investigation to return to their site, and in line with our contractual obligations to Croydon University Hospital, we are required to honour this request. As the next step in our policy and in support of yourself, we advised you to look for alternative employment opportunities within the business. This was presented to you over a 2-week period in which you could apply for any roles that would be suitable. However, you declined our offer of alternative employment, based on the options presented to you during the job search period.”[98]The dismissal letter [239-240] also responded to other points raised in the claimant’s solicitor’s letter dated 1 September 2022 [223-225]: “Suspension pay – as you were arrested and placed on bail conditions that did not allow you to attend site or make contact with anyone from ICTS, you were not able to fulfil your contractual obligations. You were therefore placed onto unpaid suspension and will not be paid for the period that your bail conditions covered. Once the bail conditions were lifted and you were able to make contact with us, we placed you onto paid suspension. Investigation process – we were not able to carry out an investigation into the issue whilst you were on bail conditions as this would have put you in breach. We were only able to contact you and carry out an investigation once the bail conditions had been lifted. Contract of employment – as you were a TUPE employee you would not have been issued a contract of employment by ICTS. You should have a contract of employment from the company you originally started with. Accompaniment at meetings – your solicitor referred to us refusing to allow you to be accompanied at any meetings which is not correct. Your union rep, … from Unison, has been copied into all correspondence to yourself and was never denied access to any meetings or calls.”[99]The dismissal letter further states: “To date we have no record of you applying for any alternative roles within the business and as such it is with regret that I inform you that your contract of employment is being terminated as a result of third-party pressure. Your removal from Croydon University Hospital and our inability to find you alternative work with your refusal to accept our offer of alternative work is ‘some other substantial reason’ which justifies your dismissal. This will take effect immediately and you are entitled to 5 weeks’ notice which will be paid to you in lieu together with any outstanding holiday pay and your P45. You have the right of appeal against my decision, and should you wish to do so you should write to hr@icts.co.uk giving the full reasons as to why you believe your dismissal was either too severe or inappropriate.”[100]I find that the dismissal letter [239-240] did not respond to the claimant’s written submissions in respect of the allegations that the respondent breached health and safety and that there were issues in respect of access to the server at CUH.[101]I find that the claimant was therefore terminated with immediate effect on 12 September 2022 and he received five weeks pay in lieu of notice.[102]In cross-examination the claimant conceded that he could see that the dismissal letter [239-240] referred to some other substantial reason. In cross-examination the claimant also said that he was not accusing the respondent of putting forward a false reason for his dismissal. The claimant also conceded that his case was more about the fact that the respondent could have done more to prevent his dismissal.[103]On 26 September 2022 the claimant’s solicitor emailed [241-242] HR at the respondent enclosing the claimant’s notice and grounds of appeal [243-246].[104]The grounds of appeal included: 104.1. At the time of the decision to dismiss, the claimant was on sick leave due to anxiety (due to suspension) and was too unwell to attend the respondent’s "third-party pressure meetings" and was still unwell and not fit for work on the date of the respondent’s letter of 12 September 2022 terminating his employment. 104.2. The alternative jobs were not suitable for the claimant. They were too far away from Purley. The respondent had put restrictions on the claimant applying for jobs in hospital or education. 104.3. The true or underlying reason for the claimant’s dismissal was one of conduct in connection with the arrest and investigation of the entire ICTS security team based at Croydon University Hospital, and that the respondent had acted in breach of(1) the claimant’s employment contract and(2) their own disciplinary policy by suspending the claimant and had not followed the ACAS code on discipline and grievance. 104.4. That the respondent had acted in breach of its own disciplinary policy in suspending and dismissing the claimant before carrying out a full investigation. 104.5. There was no contractual right to suspend the claimant with or without pay, that the respondent had suspended the claimant for five weeks from on or about 12 May 2022 without pay, then from about 10th June 2022 until the termination of the claimant’s employment on 12 September 2022 he was on paid suspension. 104.6. The respondent had prevented the claimant’s union representative from attending an initial meeting with the respondent, contrary to his right to be accompanied under section 10 of the Employment Relations Act 1999 and contrary to what had been said about this in the dismissal letter dated 12 104.7. The respondent had not followed a fair procedure, including consulting with the claimant, discussing the respondent’s proposed changes to the claimant’s employment with him or explaining their impact or responding to representations and objections made by the claimant or on his behalf. 104.8. That the respondent had not made a proper response to the principal allegations in the claimant’s written submissions contained in the letter dated 1 September 2022 [223-225]. 104.9. That the dismissal was therefore too severe, wholly inappropriate and unfair.[105]On 29 September 2022 the claimant’s sick leave ended.[106]On 6 October 2022 Miss Louw emailed the claimant attaching an invite to appeal hearing to take place on 14 October 2022 [252][107]The invite to the appeal hearing dated 6 October 2022 was from Mr Skinner [254]. This invited the claimant to attend a meeting on 14 October 2022. This states: “I have reviewed the contents of your letter and acknowledge your grounds for appeal are as follows:• You do not believe that the decision to terminate your employment for Some Other Substantial Reason was a fair decision• You were signed off by your GP as unfit to work at the time of your dismissal and have been unfit to attend work related meetings• The list of vacancies available to you were either not applicable to you, or not in your local area• You believe that ICTS did not have a contractual right to suspend you• You believe that your Union Representative has been prevented from attending meetings with you• You believe that ICTS have not followed a fair procedure when reaching the decision to terminate your employment[108]I find that this letter did not refer to all the grounds of appeal made by the claimant. It did not refer to the claimant’s assertion that the reason for the claimant’s dismissal was conduct and the claimant’s allegation that the dismissal letter [239-240] had not responded to all the issues in the claimant’s solicitor’s letter dated 1 September 2022 [223-225].[109]A revised invite to an appeal hearing dated 7 October 2022 changed the date of the appeal hearing to 13 October 2022 [258]. The revised invited did not alter the listed grounds of appeal as summarised by Mr Skinner.[110]On 9 October 2022 the claimant emailed the respondent [171] and [265-266]. This was addressed to Mr Skinner and Miss Louw. The claimant’s email repeated that the true reason for the claimant’s dismissal was not some other substantial reason but was by reason of the respondent’s conduct in connection with the use of body cameras, (in particular the failure to appoint an authorised controller for the respondent’s server as required for data protection) and the police arrest and investigation etc.[111]The claimant further alleged that the respondent did not carry out any reasonable nor actual investigation into the circumstances behind the claimant’s arrest (or any culpability for what happened), contrary to the respondent’s own disciplinary policy.[112]The claimant prepared a list of questions for the appeal hearing [274-275].[113]The claimant also prepared a statement for the appeal hearing [276].[114]Prior to the appeal hearing Mr Skinner informed the claimant that he would not be able to bring his solicitor to the meeting but that the claimant’s union representative could attend. Mr Skinner also informed the claimant that the meeting would not be recorded [276-272].[115]The appeal hearing took place on 13 October 2022. The hair was Mr Skinner, the note-taker was Ms Duleviciute. The claimant was accompanied by his trade union representative. There are minutes of the appeal hearing [277-282]. The claimant read out his statement [276] during the appeal hearing and the claimant asked his prepared questions during the appeal hearing [274-275]. The following was also discussed during the appeal hearing: “ND When did ICTS realise that they were in breach of the data protection act in failing to secure the server so that unauthorised access would not be permitted? MS To be honest with you we don’t know the complete circumstances of the allegations against the employees, I don’t think that this is something we can answer.” … “MS And I genuinely hope that you are able to get better and recover your health. In terms of what I can do, appeal meeting is usually because someone wants their job back and I get that you want to clear your name. I don’t think anybody is saying in the outcome letter that you are guilty of anything, and we haven’t been told by the police that anyone been charged with anything. Just to clarify your current position, you’ve been released from investigation or you still under investigation. What is your current status, do you know? ND I had a letter in mid-August from the police, I’m still under investigation as all my colleagues. When I was released from custody, they did say that it could take up to a year. And I received a letter in August saying that they are reviewing devices (mobile phones, body cams and CCTV server). MS As it stands at the moment you’ve been released from bail, you are under investigation but you don’t have any bail conditions. ND No, my bail conditions only lasted a month.” … “MS And just to clarify letters that your solicitor sent us is to give potentially your job back if I was able to do that, you come across that you don’t particularly have high opinion about ICTS, is this the case that you want your job back with ICTS? Is that the purpose of the appeal? ND If ICTS could offer me a suitable role then I would definitely consider that, but I still think that the fact remains there been a lot of injustice put upon me by ICTS and I think that needs to be recognised.”[116]During the appeal hearing itself alternative job vacancies that were available at that time were not discussed or explored.[117]On 13 October 2022 the claimant emailed additional documents to Mr Skinner following the appeal meeting [273]. These were documents that Mr Skinner has requested in the appeal meeting and a letter entitled "Transfer to ICTS" dated 9 March 2020 [133-134].[118]On 20 October 2022 the claimant emailed more documents to Mr Skinner [283] including TUPE information carried forward to the respondent from Corps Security (UK) Limited about the terms of the claimant’s contract of employment [284-287] and the respondent’s disciplinary procedure. It is not clear whether the disciplinary procedure that was attached to this email [283] was the procedure within the respondent’s handbook [59-132] or the disciplinary procedure of Corps Security (UK) Limited. The latter document is not in the bundle. 119. [284-287] “Tupe out-employee liability information” for the claimant dated 28 January 2020 was one of the attachments to the claimant’s email [283].[120]On 26 October Mr Skinner held a meeting with Mrs Johnson. The note-taker was Ms Duleviciute. There are minutes of this meeting [288-289]. The minutes state: “JJ So, what happened we got on the call, and he was accompanied, he had his rep on the call with him. And I explained that it wasn’t a formal meeting, and he didn’t have the right to representation. Nicholas was very anxious about the meeting; we had difficulties trying to get him to come to the meetings. He kept declining my invitations. When he did attend the initial fact-finding meeting, he had his union rep with him, I said that he didn’t have the right to be accompanied but I appreciated that he was very anxious about it, and I was keen to try to proceed forward with him and therefore I did give him the opportunity to record the meeting just to be fair and reasonable. Which he was happy with, and union rep was also happy with, and they then dropped of the call, and I was able to proceed” “MS He has also said that in the invite letter it warned him that the potential outcome could be dismissal, therefore he is saying that it is a disciplinary meeting. Did you regarded it as a disciplinary meeting? JJ Not at all. It was not a disciplinary meeting at all, it was an informal fact-finding meeting. First contact with him having been released on bail, absolutely did not regarded it as a disciplinary meeting in any way. MS If he was dismissed after that meeting, would it have been for disciplinary reasons? JJ Well, no, because we haven’t gone through disciplinary procedure. MS That meeting was not part of the disciplinary? JJ Absolutely not.”[121]On 3 October 2022 the appeal outcome letter written by Mr Skinner was emailed to the claimant [290-294]. This states: “…In relation to your suspension from duty being unpaid, this approach was taken consistently with all members of staff who were unable to attend work, due to their bail conditions. The principle reason for you not being able to attend work for the first month after your arrest was as a result of the bail conditions that you were subject to. Even if you had not been suspended you would not have been able to attend work and, therefore, would not have been paid; if you had attempted to attend work whilst subject to bail conditions, you would have been committing a criminal act. Once your bail conditions were lifted, you were placed on paid suspension. Again, given the nature of the allegations, the role that you undertake and the view of the client, I believe the decision to continue with your suspension was proportionate… “ … “I am therefore unable to uphold this element of your appeal.” … “We discussed during your appeal hearing that you transferred to ICTS from Corps Security via TUPE transfer in March 2020. Your contract of employment remains the same since prior to your transfer. As part of the TUPE onboarding process (in February 2020), you were given information as to how you could access the ICTS handbook (including the disciplinary policy), which details the company’s right to suspend you from duties in analogous circumstances.” In addition, I note that the ‘Criminal Acts Outside of Work’ section of your Corps Security Colleague Handbook (page 64) states that, should any criminal charges be made against you, it may be appropriate to suspend you without pay. I am therefore unable to uphold this element of your appeal. “I am therefore unable to uphold this element of your appeal.” … “Section 10 of the Employment Rights Act 1999 provides employees with the right to be accompanied at a formal disciplinary or grievance hearing. I have investigated this matter with Joanne Johnson, who conducted the initial investigation meeting with you on 29th June 2022. Although the invite letter stated that the termination of your employment may be one outcome of the meeting, such a termination would not have been a discipinary sanction, nor as a result of a disciplinary process. Any termination at that stage would have been because of the Police investigation and your inability to carry out your duties as a result of the same. Whilst I appreciate that it can be difficult to understand how a termination of employment can be regarded as a non-disciplinary sanction, in this case I am satisfied that it wasn’t. Neither myself, nor any of my colleagues, have formed any view as to whether you are guilty of the matters being investigated by the Police and, frankly, I have a lot of sympathy for both yourself and your colleagues in terms of how the matter has been handled by the Police. The meeting on 29th June 2022 was not a disciplainry or grievance meeting and, therefore, I don’t believe the provisions of Regulation 10 were applicable. I am therefore unable to uphold this element of your appeal.” … “You have raised concerns within your appeal that ICTS has not complied with the requirements of the Data Protection Act 2018; specifically that an appointed data protection controller was not in place, which meant that officers could access CCTV footage without authority. I don’t believe the concerns that you have raised in this regard are relevant to your appeal; they are a matters relating to the service levels provided to our client; Croydon University Hospital. Notwithstanding the above, I can assure you that, as far as I am aware, ICTS is compliant with all relevant data protection legislation (which includes the appointment of a dedicated Data Protection Officer).” … “… You were offered the opportunity to apply for any available non-security roles, but decided not to do so. I appreciate that the available roles may not have been suitable for your particular circumstances, but I am satisfied that you were given the opportunity to be considered for those roles. Unfortunately, whilst I accept that the roles put forward may not have been suitable for you, I am unable to uphold this point of appeal.” … “Whilst your appeal has not been upheld, I would like to offer you one final opportunity to consider any of the non-security related vacancies we have available, which can be found on our website: https://www.icts.co.uk/careers/vacancies”[122]The claimant did not contact Mr Skinner to indicate his interest in any of the roles on the respondent’s website. The claimant did make a subject access request in respect of his personal data at the respondent on 14 November 2022.[123]The claimant commenced ACAS early conciliation on 14 November 2022 and ACAS early conciliation ended on 15 December 2022.[124]The claimant presented his claims to the employment tribunal on 17 December 2022.
LAW
[125]The Employment Tribunals are created by statute. The predecessor to the Employment Tribunals, the Industrial Tribunals were first created in the Industrial Training Act 1964 and began operating on 31 May 1964. The claims that an Employment Tribunal has jurisdiction to hear are set out in legislation (statutes and statutory regulations). The claims that a Tribunal does not have jurisdiction to hear include free-standing claims under the common law of Torts, claims for breach of health and safety statutory provisions or regulations and claims for breach of data protection legislation.[126]Henderson -v- Henderson [1843-60] All E.R. Rep. 378 held that where a matter was the subject of adjudication by a court of competent jurisdiction, the parties to that litigation had to bring forward their whole case and would not be permitted to open the same litigation in respect of matters which ought to have been brought forward but were omitted due to negligence, inadvertence or accident.[127]The particular court or Tribunal hearing the matter must have competent jurisdiction for the claims being brought for the rule in Henderson -v- Henderson to apply. Automatic unfair dismissal for asserting a statutory right[128]Section 104 of the Employment Rights Act 1996 (“ERA”) states: “104.— Assertion of statutory right(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.(4) The following are relevant statutory rights for the purposes of this section— (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal, (b) the right conferred by section 86 of this Act, (c) the rights conferred by sections 68, 86, 145A, 145B, 146, 168, 168A, 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off), (d) the rights conferred by the Working Time Regulations 1998 , [[the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58)],] the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003[, the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008], and (e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.(5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).”[129]If an assertion of a statutory right reason is established, the Tribunal must find the dismissal unfair and the reasonableness of the decision to dismiss is irrelevant.[130]Section 104 of the ERA (see above) makes it clear that an inquiry must be made as to the reason or principal reason for dismissal, however, the burden of who must show the reason is expressed neutrally.[131]It is implicit in the statutory wording that there may be more than one reason for dismissal but it is necessary for the tribunal to identify only one reason or one principal reason for the dismissal. The Tribunal must, from the set of facts that operated on the mind of the employer at the time of dismissal, identify the correct legal label.[132]When the employee has the qualifying service of two years to bring a claim of unfair dismissal the employee must merely produce evidence sufficient to raise the issue (i.e., that the reason or principal reason for the dismissal was the employee’s assertion of a statutory right), or to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.[133]It is immaterial whether the employee has the right or whether in fact the right has been infringed. All that is needed is that the employee’s claim to the right and the assertion that is has been breached is made in good faith.[134]Employees should make reasonably clear the relevant statutory right that they allege has been infringed, although it is not necessary for them to specify the right.[135]Section 44 of the ERA states: “44.— Health and safety cases:(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,(b) being a representative of workers on matters of health and safety at work or member of a safety committee— (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, [ (ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),[.or] ](c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety [.] [...] [ (1A) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that— (a) in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or (b) in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger. ] (2) For the purposes of subsection [(1A)(b)] whether steps which [a worker] took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) [A worker] is not to be regarded as having been subjected to any detriment on the ground specified in subsection [(1A)(b)] if the employer shows that it was (or would have been) so negligent for [the worker] to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did. (4) [This] section does not apply where the [worker is an employee and the ] detriment in question amounts to dismissal (within the meaning of [Part X] ).” Unfair dismissal under section 94 of the ERA[136]Section 94 of the ERA 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 claimant must show that he was dismissed by the respondent under section 95, but in this case the respondent admits that it dismissed the claimant.[137]Section 98 of the ERA 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 employer 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.[138]Section 98(4) then deals with fairness generally and 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.[139]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.[140]First, the employer carries the burden of proof in showing that some other substantial reason is the sole or principal reason for the dismissal. To satisfy this stage, the employer needs only to establish some other substantial reason for the dismissal which could justify the dismissal of an employee holding the job in question: it is not necessary to show that it actually did justify the dismissal. At this first stage, the Tribunal must not consider the justification, reasonableness or fairness of dismissing for some other substantial reason.[141]Customer pressure will be accepted as some other substantial reason if the evidence points to an ultimatum having been served on the employer. However, there does not have to be a direct instruction to dismiss if the effect of the pressure amounts to the same thing.[142]Secondly, the Tribunal will also need to consider whether it was reasonable to dismiss the employee because of that pressure.[143]In considering reasonableness, Tribunals should look at the conduct of the employer and whether dismissal is an injustice to the employee. An argument based on injustice is less likely to be sustainable if the employee’s own contract warned that a third party could intervene to have him removed.[144]The employer does not have to establish the truth of any allegations made against the employee or agree with the request to dismiss in order to rely on third-party pressure as the reason for dismissal. However, an employer cannot simply hide behind the decision of the client and must do everything that it reasonably can to avoid or mitigate any injustice to the employee.[145]The fairness of some other substantial reason dismissals under section 98(4) requires a balancing exercise between the needs of the employer and the detriment to the employee. A fair procedure must be followed.[146]A fair procedure for some other substantial reason dismissals may also encompass the need to consider suitable alternative employment before dismissing the employee. The duty, if engaged, will usually require the employer to take proactive steps to assist the employee.[147]The employer is not obliged to create alternative employment for the employee where none already exists. However, they should make sure that they undertake a sufficiently thorough search for alternative employment and that their search is documented.[148]If an employee refuses to attend meetings, the employer should find out why the employee is refusing.[149]It may be appropriate to use alternative means to undertake the meetings, such as undertaking the process in writing. In particular, where an employee has a disability which affects their ability to attend face-to-face meetings, alternative methods of communication should be considered.[150]Section 10 Employment Relations Act 1999 states: “10.— Right to be accompanied (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing.”[151]Section 13 of the Employment Relations Act 1999 states: “13.— Interpretation … (4) For the purposes of section 10 a disciplinary hearing is a hearing which could result in—(a) the administration of a formal warning to a worker by his employer,(b) the taking of some other action in respect of a worker by his employer, or(c) the confirmation of a warning issued or some other action taken.”[152]The phrase ‘some other action’ in section 13(4) of the Employment Relations Act 1999 must be construed as any other disciplinary action. Applicability of ACAS Code of Practice on Disciplinary and Grievance Procedures (“the Code”) to SOSR dismissals[153]The Code states that it applies to disciplinary issues relating to ‘misconduct’ and ‘poor performance’ (paragraph 1 of the Code), meaning that conduct and capability dismissals are expressly covered. It then goes on to make clear that it does not extend to redundancy dismissals or dismissals on the non-renewal of a limited-term contract. In the absence of clear wording in the Code sanctions (i.e. increasing compensation) should not be applied against an employer for failure to comply with the letter of the Code by an employer in some other substantial reason dismissals.[154]That does not mean the employer should ignore the Code, as there are parts of it that are capable of being applied in some other substantial reason dismissals and that are a matter of common sense in ensuring fairness in a procedure. Unpaid suspension[155]Malik and Mahmud -v- BCCI [1997] ICR 606 formulated the definition of a breach of the implied term of mutual trust and confidence by the employer as follows: “Without reasonable and proper cause, conducted itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee.”[156]The Malik test is objective and all the circumstances must be considered. It is not enough to show merely that the employer has behaved unreasonably. The line between serious unreasonableness and a breach of the implied term of mutual trust and confidence is a fine one.[157]In Gogay v Hertfordshire County Council 2000 WL 989480 the Court of Appeal upheld a judge's decision that a local authority was in breach of the implied contractual duty of trust and confidence in suspending a residential care worker pending an investigation into allegations of child abuse.[158]In that case it did not follow that an employee should be suspended because the local authority had reasonable grounds for making enquiries into allegations of child abuse.[159]Hale LJ at paragraphs 55 and 56 said: “[55] Did the authority’s conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that ‘the issue to be investigated is an allegation of sexual abuse made by a young person in our care.’ Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one’s employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was ‘reasonable and proper cause’ to do this. [56] In my judgment there clearly was not. The information considered by David Gibson and strategy meeting was indeed ‘difficult to evaluate’. The difficulty was in determining what, if anything, EL was trying to convey. It warranted further investigation. But to describe it as an ‘allegation of sexual abuse’ is putting it far too high. A close reading of the records coupled with further inquiries of the therapist were needed before it could be characterised as such.” Unlawful deductions from wages[160]Section 13(9) of the ERA provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker has previously signified in writing his agreement or consent to the making of a deduction. An employee has the right to complain to an Employment Tribunal of an unauthorised deduction from wages pursuant to section 23 ERA.[161]In Burns -v- Santander UK plc [2011] 3 WLUK 718 the Employment Appeal Tribunal (“EAT”) found that an employee remanded in custody pending trial was not entitled to be paid, as his remand was an avoidable impediment. He had therefore not suffered an unlawful deduction from wages.[162]In Kent County Council -v- Knowles [2012] 3 WLUK 304 The EAT held that the fact that an employee who was suspended had been arrested and even charged did not remove his legal right to pay which otherwise he would have had, so long as he was able and willing to work. However, if he was remanded in custody, then it was open to a tribunal to find that he had acted in such a way as to render it impossible for him to work.[163]In North West Anglia NHS Foundation Trust -v- Gregg [2019] EWCA Civ 387 the Court of Appeal held where the contract did not address whether pay could be deducted during an interim suspension, the default position should be that pay should not be deducted.[164]The second limb of section 13(1)(a) of the ERA permits deductions where they are authorised by ‘a relevant provision of the worker’s contract’. This phrase is defined in section 13(2) of the ERA as a provision contained in one or more written contractual terms of which the employer has given the worker a copy before the deduction is made. CONCLUSIONS Applicability of Henderson -v- Henderson [1843-60] All E.R. Rep. 378
CONCLUSIONS
[165]I conclude that as the Employment Tribunals do not have the jurisdiction to hear free-standing complaints of negligence (or any other Tort for that matter) or complaints for breach of health and safety statutory provisions (specified in either statute or regulation) or breaches of data protection legislation Henderson -v- Henderson is not applicable in this matter in respect of hearing those types of complaints because there is no competent jurisdiction to hear those complaints. Automatic unfair dismissal contrary to section 104 of the ERA[166]In the list of issues agreed at the case management hearing on 12 September 2023 and amended on 9 September 2025 (first day of the final hearing) the claimant’s claim under section 104 of the ERA states that the claimant says that on 1 September 2022 he alleged that the respondent had breached health and safety duties owed to the claimant by failing to ensure that proper security controls governing the security serves and the security team’s use of body cameras were in place.[167]It is not every statutory right that falls within section 104. Section 104(4) lists which statutory rights are relevant for the purposes of section 104.[168]Also, to be clear, I do not need to find whether the respondent did in fact breach the statutory right that has been asserted by the claimant. That is not a requirement of section 104.[169]In terms of how the claim has been framed in the list of issues I am not entirely convinced that it is an assertion of a statutory right for the purposes of section 104 of the ERA. The provision that it could most likely be asserting breach of is section 44 of the ERA. Under section 44 of the ERA an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the various grounds listed in section 44 of the ERA (see above).[170]The only possible part of this section that could be relevant is section 44(1)(c): “(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— (c) being an employee at a place where—(i) there was no such representative or safety committee, or(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety [.]”[171]The claim as drafted is alleging that the claimant said the respondent had breached health and safety duties. It does not explicitly state the claimant suffered a detriment because he had previously raised breach of health and safety duties.[172]Turning to the actual letter where the assertion of breach of a statutory right is said by the claimant to have been made [223-225]. This is a letter from the claimant’s solicitors dated 1 September 2022. The letter states “our instructions are that the distress and financial loss caused to him have been due to the Company’s failure to ensure proper security controls governing the security server and the security team’s use of body cameras”.[173]I am not entirely convinced that the letter is asserting a breach of section 44 of the ERA. The letter does not state the distress and financial loss is because the claimant previously raised health and safety grounds to the respondent. The letter states the distress and financial loss was caused by the company’s failure to ensure the claimant’s health and safety (by not ensuring proper security controls governing the security server and the security team’s use of body cameras.[174]However, this point was not covered in the respondent’s submissions and therefore I have still considered below whether the claimant has raised enough facts to satisfy the evidential burden on the claimant that the reason or principal reason for the claimant’s dismissal was the assertion of a breach of a statutory right.[175]Firstly, the letter of 1 September 2022 from the claimant’s solicitors [223-225] is documentary evidence of an assertion of a breach of a statutory right (on the assumption that the assertion does fall within section 104(4) of the ERA).[176]Secondly, in respect of whether the reason or principal reason for the claimant’s dismissal was by reason of the claimant asserting a breach of a statutory right there is nothing in the claimant’s written witness statement (which stands as his evidence-inchief) that states that the reason put forward by the respondent for dismissing the claimant (some other substantial reason) is false and that in fact the reason or principal reason was by reason of the claimant asserting breach of a statutory right. Nor is there anything in Mr Cheney’s statement.[177]In cross-examination the claimant conceded that he could see that the dismissal letter referred to some other substantial reason and the claimant confirmed he was not accusing the respondent of putting forward a false reason. Further in crossexamination the claimant confirmed that his claim was more that the respondent could have done more to prevent his dismissal.[178]I conclude, therefore, that the claimant has not produced evidence sufficient to raise the issue or produced evidence that raises some doubt about the reason for the dismissal.[179]The claimant’s complaint of automatic unfair dismissal under section 104 of the ERA is not well-founded and I conclude that the respondent did not unfairly dismiss the claimant for asserting breach of a statutory right. Unfair dismissal under section 94 of the ERA[180]The respondent has identified some other substantial reason due to third party pressure as being the fair reason for the dismissal of the claimant.[181]Initially, the NHS Trust running CUH informed the respondent verbally that it did not want those employees at the respondent who had been arrested returning to work at CUH while they will still under investigation by the police. Although there is no evidence that the claimant was mentioned by name he was one of the employees who had been arrested and was under investigation by the police at the material time (May to September 2022).[182]The NHS Trust issued a breach notice to the respondent [153-155]. Further, after Mr Skinner had emailed [161] the NHS Trust of CUH to inform them the respondent’s employees who could legally return to work (i.e., those not still under bail conditions preventing them from working at CUH) would be returning to CUH within 48 hours unless Mr Skinner heard otherwise the NHS Trust did send an email on 18 July 2022 [192-194] and letter [197-198] to the respondent.[183]The email [192-194] was vague and said the respondent should continue its course of action of redeploying the employees (as had been confirmed in a meeting on 31 May 2022).[184]The letter [197-198] was clearer. I conclude that it was very clear that the NHS Trust of CUH were not going to permit employees of the respondent released under investigation to return to CUH until the police had concluded its investigation and there was no case for the employees to answer.[185]In addition, the police had informed Mr Skinner that the investigation could take six to twelve months. This was in the email from DS Suffolk to Mr Skinner dated 8 June 2022 [148-149]. The respondent states that they could not keep the employees released under investigation suspended for that length of time due to the costs of doing so and the disruption to the business. The respondent has not provided detailed evidence of these costs and the disruption. However, I accept that given the number of employees involved (at least 16) and the timeframe (six to twelve months) it would have been too costly and disruptive to keep the employees suspended on full pay for up to 12 months.[186]In the investigation meeting [182-189] held with the claimant on 29 June 2022 Mrs Johnson explained to the claimant that CUH had verbally indicated that they would not be willing for the individuals still currently under investigation to return to CUH and that if the respondent was not able to return the claimant to CUH then a search for alternative vacancies would be started.[187]In the letter dated 30 August 2022 [215] from the respondent to the claimant the respondent informed the client that CUH had confirmed in writing that they would not permit any employees who had been released under investigation to return to their site. This was repeated in the letter dated 7 September 2022 [228-229] from the respondent to the claimant.[188]Further in the letter dismissing the claimant dated 12 September 2022 [239-240] this fact was repeated again and that although it was regrettable in line with the respondent’s contractual obligation to CUH the respondent were required to honour that request.[189]Given all the above I conclude that the reason for the claimant’s dismissal was for some other substantial reason due to third party pressure.[190]In respect of reasonableness, I note that the handbook [59-132] of the respondent did include a section on third party pressure [81]. The handbook of the respondent was introduced after the claimant transferred to the respondent on 1 March 2020 and it was sent to the claimant in April 2020.[191]The section on third party pressure did inform the claimant that if clients withdrew their support for him to attend its premises the respondent would have no alternative other than removing the claimant but that the respondent may make representations to request the client reconsider their decision [81]. This section does also state the respondent will consider possible alternatives to maintain the claimant’s employment but that the respondent reserves the right to terminate the claimant’s employment.[192]I also note that Mr Skinner in June 2022 and July 2022 was emailing both the police and the NHS Trust of CUH to clarify the situation in respect of the employees released under investigation (which included the claimant). He emailed DS Suffolk on 8 June 2022 [148-149] and he emailed DS Barrett on 8 June 2022 [144]. In Mr Skinner’s email to DS Barrett, he particularly expressed his concern about the employees who were released from investigation not being able to returning to work for six to twelve months. Mr Skinner also sent a further email to the police on 11 July 2022.[193]Despite the advice from DS Suffolk that the employees released under investigation should not return to work [148-149] Mr Skinner and the respondent were also seeking clarification from the client (the NHS Trust that ran CUH) as to whether they would allow the affected employees to return to work at CUH.[194]On 16 June 2022 in the response to CUH’s breach notice [166-167] the respondent specifically questioned Mr Carter-Shaw at CUH about whether the individuals released from police bail could return to work.[195]Then on 11 July 2022 Mr Skinner emailed CUH and gave a deadline of 48 hours for CUH to respond otherwise the respondent’s employees released under investigation would return to work on site at CUH [161].[196]When the response Mr Skinner received from CUH on 18 July 2022 [194] was unclear Mr Skinner emailed CUH requesting clarification on 19 July 2022 [192].[197]In cross-examination Mr Skinner confirmed that if NHS Trust of CUH had been willing for the respondent’s employees, who had been released under investigation (including the claimant), to return to work on site at CUH then the respondent would have been willing to allow them to work at CUH (ignoring the police advice to the contrary).[198]I conclude that the respondent was not blindly following the police’s advice about the claimant (and the other employees released under investigation) that he should not return to work.[199]I also conclude that Mr Skinner was pressing the client (the NHS Trust running CUH) to allow the claimant (and the other employees released under investigation) to return to work at CUH. I conclude that Mr Skinner was taking steps to ensure as far as he could that the claimant (and the other employees released under investigation) could retain their positions at CUH and therefore retain their employment with the respondent.[200]The actions of the respondent in respect of adhering to the request made by the NHS Trust of CUH not to permit the claimant to return to work at CUH did fall within the range of reasonable responses in respect of how it acted in the unfortunate situation that had arisen for the claimant.[201]In terms of balancing the between the needs of the employer and the detriment to the employee firstly, the detriment to the claimant is that his employment was ultimately terminated. Secondly, the needs of the respondent included treating all the affected employees involved with equity, and the costs and disruption to the business in retaining the employees on paid suspension for possibly up to 12 months. I conclude that the cost and disruption to the respondent in retaining the claimant (along with other employees) on paid suspension for up to 12 months outweighed the detriment to the claimant of losing his employment.[202]Mr Pereira submitted that surely just the claimant could have been kept on paid suspension for the period while he was still under investigation by the police. This submission ignores the reality that, in general, all employees should be treated the same. The claimant’s anxiety was not reason enough for the respondent to retain the claimant for up to 12 months while not doing the same for the other affected employees. Fair procedure[203]The process followed by the respondent must also be fair.[204]I will firstly consider the specific issues raised by the claimant about the process. Suspension without pay from 12 May 2022[205]The claimant submits that the respondent’s decision to suspend the claimant without pay from 12 May 2022 was a knee-jerk reaction. That there was no fair and reasonable investigation before the respondent suspended the claimant from the date of his arrest. Mr Pereira suggested in submissions that an investigation could have been conducted with the NHS Trust running CUH or internally with the management team at the respondent. Mr Pereira submitted that the Tribunal should follow the case of Gogay.[206]Mr Pereira also submitted that it was an injustice that the claimant had been arrested because the respondent had not complied with its obligations under data protection legislation and/ or not provided the security team with training about the use of the bodycams and the server at CUH and that this was the reason the other employee was able to misuse CCTV footage.[207]The respondent submits that the facts of this case are different to the facts of Gogay. In respect of the alleged failure to comply with data protection legislation and/ or not providing training to the security team Mr Ramsbottom submitted whether the claimant may or may not be right about this is irrelevant because it did not feature in the dismissal.[208]Mr Ramsbottom further submitted in relation to the suspension that at the time of the decision the claimant was under investigation for a criminal act (that later appeared to be a serious criminal allegation). Further at the time the respondent did not have a lot of information about the allegations and the information provided by the employees in their investigation meetings conflicted. At the time the decision was made to suspend the claimant and to not pay the claimant for the period while he was under bail conditions the respondent did not have the information the claimant has now alleged to the Tribunal.[209]In reality there are two aspects to this part of the procedure. Firstly, the fact the claimant was suspended from 12 May 2022 and secondly, that the suspension was unpaid between 12 May 2022 and 9 June 2022 (inclusive).[210]On the facts of this case the claimant was arrested on 12 May 2022 and he was then issued with bail conditions by the police not to attend the site at CUH and not to contact anyone at the respondent. This meant in any event that he could not attend work at the respondent (whether at CUH or elsewhere) because he was being prevented from doing so by his bail conditions. He would have been committing a criminal act if he had broken these bail conditions.[211]I conclude that the facts are, therefore, very different to the facts in Gogay. I conclude that the mere fact of the suspension itself did not breach the implied term of mutual trust and confidence between the employer and the employee.[212]I also note that in Gogay one of the deciding factors that there had been a breach of the implied term of trust and confidence was because the suspension letter in that case had said the issue to be “investigated is an allegation of sexual abuse made by a young person in our care”. As this allegation was so potentially distressing and damaging to Mrs Gogay more care should have been taken to investigate the allegations prior to suspending her. In this case the suspension letter [143] merely repeated facts of which the claimant was already aware, that he had been arrested and released on bail and was being investigated for a serious criminal matter.[213]The next question is whether the decision to not pay the claimant between 12 May 2022 and 9 June 2022 (inclusive) was a breach of an express term of the contract or a breach of the implied term of mutual trust and confidence between the employer and the employee.[214]There is an express term providing the respondent with the right to suspend the claimant with or without pay. This is clause 23.4 [57]. I conclude that the respondent did not breach an express term of the contract of employment.[215]In respect to whether the respondent breached the implied term of mutual trust and confidence firstly, I conclude that up until the bail conditions were lifted it was the bail conditions imposed on the claimant by the police that prevented him from attending work. The question is whether the respondent should have carried out more investigations before deciding that this time (12 May 2022 to 9 June 2022 inclusive) should be unpaid. The decision was made sometime between 12 May 2022 and 18 May 2022 (because the suspension letter [143] had retrospective effect).[216]Due to the bail conditions placed on the respondent’s security team the respondent was unable to carry out investigations with the employees who were under investigation by the police. The only other option available to the respondent at that time was to gather information from the police and/ or the NHS Trust running CUH. The police were in contact with the respondent at this time via email [141] and [139].[217]I conclude that it is unrealistic to expect that the police would inform the respondent about the details of the allegations against the claimant when they were in the middle of their investigations. In addition, it is unrealistic to expect that the NHS Trust would have had more details than the respondent at the early stages of the investigation.[218]I also conclude that without more information from either the police or the NHS Trust any internal management investigation would not have garnered any more insight or information as to what had occurred (and whether the respondent was at fault in the situation in any way).[219]I, therefore, conclude that there was not much more the respondent could have done to investigate during the time when the employees under investigation by the police (including the claimant) were subject to bail conditions.[220]In respect of whether the respondent should have changed its mind and paid the claimant retrospectively prior to or on his dismissal for the time between 12 May 2022 to 9 June 2022 the respondent did carry out investigation meetings with the claimant (and the other employees released under investigation). In this case the information provided by the claimant and the other employees in the investigation meetings did not provide the respondent with any substantive information about the allegations against the claimant or why the other employee had been arrested a week prior.[221]The collective grievance [157-158] brought by Mr Cheney on behalf of the other employees questioning the unpaid suspension did not raise any issues about access to the server being available to all security employees and/ or lack of training in respect of the bodycams. This collective grievance did not suggest that the arrest of the claimant in the first place was attributable to the acts or omissions of the respondent.[222]The claimant himself first alluded to the bodycams being an issue or factor in his arrest in his email dated 9 August 2022 to Mrs Johnson [204]. In respect of the other employee who had been arrested the claimant said in this email: “By default, the company allowed anyone free access to the security server but there is no way I could’ve known what this man was doing. As a supervisor of one team of four men I would not have had time to examine all the stuff that was uploaded to the security server by all the other body cams issued to the whole security department.”[223]I conclude that even this email was not placing the blame on the respondent for the claimant’s arrest as is now the claimant’s case before the Tribunal.[224]In fact, the allegation that the claimant’s arrest was due to the mismanagement of the respondent (by failing to ensure proper security controls governing the security server and the security team’s use of body cameras) was first made in the letter from the claimant’s solicitor to the respondent dated 1 September 2022 [223-225].[225]Mr Skinner during the appeal hearing on 13 October 2022 replied to the claimant’s question about alleged breaches of data protection as follows: “To be honest with you we don’t know the complete circumstances of the allegation against the employees, I don’t think that this is something that we can answer.”[226]I conclude that given the respondent still did not know the complete circumstances of the allegations at the time of the claimant’s dismissal on 12 September 2022 (and that it had been provided conflicting information by the employees during the investigation meetings) the fact that the respondent did not change its decision and pay the claimant retrospectively was not a breach of the implied term of trust and confidence.[227]Mr Pereira submitted that the respondent should have taken more care in its decisions regarding the unpaid suspension for the claimant due to the claimant’s preexisting condition of anxiety.[228]I have found above that the respondent was not aware of the claimant’s particular mental health issues (of anxiety) until end of June 2022. However, the respondent was aware that the situation was potentially damaging to its employees’ mental health in general, as this was recognised in its suspension letter to the claimant [143]. In this letter the claimant was informed about the respondent’s EAP and the letter specifically stated that the respondent recognised that it was a difficult and distressing time for the claimant.[229]In respect of the act of suspension itself in reality it was the bail conditions imposed on the claimant by the police that meant the claimant could not work for the respondent (as I have explored in more detail above).[230]In respect of the decision that the suspension be unpaid, at the time of the decision (sometime between 12 May 2022 and 16 May 2022) the respondent was not aware of the claimant’s particular mental health issues. I conclude there was no failure to take this into account at that stage.[231]The respondent did become aware after its decision (about the suspension being unpaid) in late June 2022 that that the claimant had anxiety and that it was being aggravated by what had happened and the ongoing investigation. The collective grievance [157-158] had also referred to the mental wellbeing of the employees (including the claimant).[232]Certainly, once the respondent knew about the claimant’s particular mental health struggles it would have been kinder to have paid the claimant retrospectively at that point. That, however, is not the question here.[233]The question is firstly, whether it was a breach of the implied term of mutual trust and confidence to not pay the claimant (for the period of 12 May 2022 to 9 June 2022 inclusive) when the respondent became aware of his anxiety and secondly, whether not paying when the respondent became aware of the claimant’s anxiety was outside the range of reasonable responses of a reasonable employer (thereby making the procedure unfair).[234]I have not been presented with sufficient evidence to establish whether the claimant was disabled under section 6 of the Equality Act 2010 at the material times. Nor have I been asked to look at that issue. Certainly, the respondent had enough information from the claimant about his anxiety in his email to Mrs Johnson on 27 June 2022 [176] to be put on notice that the claimant might be disabled for the purposes of the Equality Act 2010.[235]The respondent had made a business decision that it would not pay its employees for the period while they were subject to bail conditions not to attend CUH or to contact anyone at the respondent. If the respondent had paid the claimant retrospectively once it became aware of his anxiety it would have been treating him more favourably than the other employees.[236]The fact of the claimant’s anxiety could have potentially justified the respondent adjusting the process for the claimant in some respects, but I conclude that it would not have been sufficient justification for deciding to pay only the claimant for the period from 12 May 2022 to 9 June 2022 inclusive. I conclude that would have been a step too far.[237]I, therefore, conclude that there was not a breach of the implied term of mutual trust and confidence and further that the respondent’s decisions in respect of not paying the claimant between 12 May 2022 and 9 June 2022 inclusive did fall within the range of reasonable responses of a reasonable employer. Not allowing the claimant to be accompanied to the investigation meeting on 29 June 2022[238]The claimant submitted that the meeting on 29 June 2022 falls within section 10 of the Employment Relations Act 1999 because it was a disciplinary meeting. One of the reasons being the inclusion of the sentence “Please be aware that, as a result, one outcome of the meeting may be that your employment is terminated, with notice.”[239]The respondent submitted that as the reason for the dismissal is some other substantial reason the process leading up to the dismissal on 29 June 2022 was not a disciplinary process. The respondent also submits that the meeting on 29 June 2022 was in any event a fact-finding meeting.[240]The respondent’s evidence is that Mr Skinner was the original drafter of the letter (he drafted a template for Mrs Johnson to use for all of the employees being investigated by the police) and that Mr Skinner included this sentence to allow for the possibility that something might be uncovered during the investigation meetings that would lead to CUH immediately insisting that the claimant (and the other employees released under investigation) would not be permitted to return to CUH.[241]In my conclusion, any such termination of employment in that event (specified in paragraph) would be for some other substantial reason. Also, the reason for the eventual termination of the claimant’s employment was for some other substantial reason.[242]I conclude that given that the wording in section 13(4) of the Employment Relations Act 1999 must be construed as the taking “of some other disciplinary action”, this means section 10 of the Employment Relations Act 1999 is not applicable to the procedure undertaken by the respondent on these facts.[243]I have also reviewed the notes of the meeting held on 29 June 2022 [182-189] and conclude that it was in any event purely a fact-finding meeting and no action was in fact taken at that meeting against the claimant (whether disciplinary or nondisciplinary). I conclude that the meeting would not have fallen within section 10 of the Employment Relations Act 1999 even if the reason for the dismissal had been conduct or capability (which it was not on these facts).[244]The above also means that paragraph 13 of the Code was not applicable to the process in this case. That the respondent did not do enough to find an alternative vacancy for the claimant[245]The claimant submitted that just providing the claimant with the link to access the job vacancies at the respondent was insufficient. The respondent submitted that there were other vacancies, but that the claimant did not identify any vacancy that he might be interested in for the respondent to then explore suitable alternative employment with the claimant.[246]As, firstly the respondent did not have information to confirm whether the claimant was at fault (and conflicting information had been provided in the investigation meeting with the employees) and secondly, the section in the respondent’s handbook concerning third party pressure [81] states the respondent will consider possible alternatives to maintain the claimant’s employment I conclude that there was a duty for the respondent to consider alternative employment for the claimant.[247]Mrs Johnson raised the issue of alternative employment with the claimant in the investigation meeting on 29 June 2022 [182-189]. Mrs Johnson also explained that the claimant could not apply for positions within hospitals, college or universities. In this meeting Mrs Johnson also explained that any alternative employment may need to be a non-security position but that the claimant should look at the roles and then if he was interested in any it could be taken further. Mrs Johnson also explained that she would send the link to the claimant.[248]At this time (and until the appeal outcome letter [290-294]) the claimant was still released under investigation for perverting the course of justice. I conclude that in those circumstances it was within the range of reasonable responses of a reasonable employer to limit the possible alternative employment to not include jobs within hospital or education sites. I accept and conclude that it would have been irresponsible of the respondent to place the claimant onto such public-facing sites while he remained under investigation for perverting the course of justice.[249]I also accept and conclude that placing the claimant into a security role without first considering the nature of the particular security role and what it entailed would also have been irresponsible and a breach of duty by the respondent to its clients for the same reason as paragraph 247 above.[250]I conclude the vacancies available at the end of June 2022 [216-219] were not suitable for the claimant. They were either too far away from his home address or were jobs unsuitable to his skillset.[251]The vacancies were updated all the time on the website. There was no evidence put before the Tribunal about the vacancies available from July 2022 onwards.[252]Mrs Johnson did attempt to arrange a meeting with the claimant on 2 August 2022 [200]. The claimant was signed off sick on 1 August 2022 and in fact did not attend any further meetings with the respondent prior to his dismissal on 12 September 2022.[253]In the appeal hearing itself [277-282] alternative employment roles available at that time were not explored but in the appeal outcome letter [290 – 294] Mr Skinner provided the claimant with one final opportunity to consider the non-security related vacancies that the respondent had available and shared the link with the claimant again. Mr Skinner gave the claimant a deadline until 9 November 2022 [290-294 ] to respond.[254]I conclude that the respondent did nothing proactive in terms of alternative employment. The claimant was simply told he could apply for jobs on the website (within certain parameters) without any meaningful assistance being provided to him. The appeal outcome letter simply repeated the opportunity to look at the vacancies on the respondent’s website.[255]There is also no evidence of other steps a reasonable employer might have taken, such as speaking to the claimant about where his interests lie, assisting in identifying other roles or encouraging conversations about different roles, even if that meant demotion. This could also have been achieved in writing given the claimant was reluctant to attend meetings with the respondent. The respondent’s lack of action in respect of considering alternative employment with the claimant fell outside the range of reasonable responses by a reasonable employer.[256]I conclude that this is compounded by the fact that the respondent was aware that the claimant had anxiety (and he was experiencing symptoms) from at least the end of June 2022. This was all the more reason to have provided the claimant with meaningful assistance to find an alternative role within the respondent.[257]For this reason, the dismissal of the claimant was unfair. Fairness of the respondent’s procedure in general[258]The respondent held an investigation meeting with the claimant on 29 June 2022. I have read the minutes/ notes of the meeting [182-189] and I have concluded above that this was in fact a purely fact-finding meeting.[259]The original invitation to the investigation meeting given to the claimant was very short notice. The original invitation on Friday, 24 June 2022 invited the claimant to attend a meeting on Monday, 27 June 2022 [169-170].[260]Paragraph 11 of the Code states that meetings should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case. I conclude that this particular paragraph of the Code is a matter of common sense and should be followed by employers in cases of some other substantial reason dismissals to ensure a fair procedure is being followed.[261]In actual fact the investigation meeting did not occur on 27 June 2022 because the claimant did not attend. It was rescheduled to Wednesday, 29 June 2022. The claimant did attend the virtual meeting on that date and Mrs Johnson agreed this it could be recorded so, that the recording could be forwarded to the claimant’s union representative.[262]I conclude that this meant the claimant did have reasonable time to prepare for the meeting.[263]The claimant did not attend any further meetings with the respondent prior to his dismissal despite the respondent’s attempts to organise a further meeting. The respondent attempted to schedule meetings to take place on 2 August 2022 [200], 10 August 2022 [203] and a formal meeting on 1 September 2022 [215]. The claimant informed the respondent that he was not going to attend the meetings on 2 August 2022 and 10 August 2022 due to his anxiety and that he was signed off work by his GP [200], [202-203] and [204]. The claimant’s solicitors wrote a letter to the respondent on 1 September 2022 raising a number of allegations and complaints [223- 225].[264]The respondent then invited the claimant to a re-scheduled formal meeting to take place on 9 September 2022 [228-229]. This letter, however, provided the claimant with four alternative options to attending a meeting.[265]I conclude that the respondent had attempted to arrange further meetings and then a formal meeting with the claimant. I also conclude that they had taken into account the claimant’s reluctance to attend a meeting and that this was due to his anxiety.[266]I also conclude that it was within the range of reasonable responses of a reasonable employer to suggest the other four options as an alternative to a meeting to be able to proceed with the process instead of delaying the process to the end of the claimant’s signed off period from work for sickness (the current certificate expiring on 29 September 2022). The respondent had already delayed the process for the claimant in comparison to the other employees who were still released under investigation (at the start of September 2022 all the other employees released under investigation had either found alternative employment, either with the respondent or elsewhere or, had been dismissed).[267]The dismissal letter to the claimant dated 12 September 2022 [239-240] was both thorough and clear in most respects. It did respond to the majority of the claimant’s written submissions as set out in his solicitor’s letter dated 1 September 2022 [223- 225]. I conclude, however, that it did not respond to the claimant’s submissions about the alleged breaches of health and safety and the issues with access to the server at CUH.[268]The claimant was given an opportunity to appeal in the dismissal letter [223-225].[269]Mr Skinner summarised what he considered to be the claimant’s grounds of appeal in his letters to the claimant [254] and [258]. I have compared the notice and grounds of appeal [243-246] with these two letters [254] and [258]. The letters do summarise most of the claimant’s grounds of appeal but do not mention the claimant’s assertion that the reason for his dismissal was in fact conduct and the claimant pointing out that the dismissal letter dated 12 September 2022 [239-240] did not respond to all the issues raised in the claimant’s solicitor’s letter dated 1 September 2022 [223-225].[270]The appeal hearing took place on 13 October 2022 and Mr Skinner chaired that appeal hearing [277-282]. The claimant conceded in cross-examination that he had opportunity to put forward all his arguments in support of his appeal. The claimant was accompanied to this meeting by his union representative. The claimant was allowed to read out a prepared statement [276] during the appeal hearing. The claimant was also allowed to read out his prepared questions [274-275].[271]Following the appeal hearing Mr Skinner held a meeting with Mrs Johnson on 26 October 2022 [288-289] to establish what had happened in respect of the claimant’s union representative not being allowed to attend the investigation meeting on 29 June 2022 and whether in fact the meeting on 29 June 2022 was a purely fact-finding meeting.[272]As part of the appeal process Mr Skinner also took into account additional documents that were sent to him by the claimant, these included, amongst others, the letter dated 9 March 2020 [133-134] titled Transfer to ICTS in the claimant’s email dated 13 October 2022 [273] and the TUPE information sent to the respondent by Corps Security in respect of the claimant [284-287] which the claimant emailed on 20 October 2022 [283].[273]I conclude that the appeal process (excepting the issue of exploring alternative vacancies) was fair.[274]I conclude that the appeal outcome letter [290-294] was thorough and responded to all the grounds of appeal made by the claimant. I conclude that it did respond to the claimant’s assertion that he should have been accompanied by his trade union representative to the investigation meeting on 29 June 2022.[275]I conclude that the appeal outcome letter was not entirely correct in its reference to Corps Security (UK) Limited’s Colleague handbook instead of the claimant’s contract of employment [54-58] in respect of the suspension but this was not so serious as to make the procedure unfair.[276]The claimant was given information about the respondent’s EAP. This information was provided in the suspension letter dated 18 May 2022 [143] and the letter inviting the claimant to the investigation meeting [169-170]. During the investigation [182-189] meeting Mrs Johnson encouraged the claimant to make use of the respondent’s EAP and that it could be accessed more quickly than the NHS.[277]Given all the above I conclude there was no other aspect of the respondent’s procedure that was unfair. Unlawful deductions from wages[278]The first period of deductions from wages that the claimant claims was unlawful is the time when the claimant was placed on unpaid suspension by the respondent from 12 May 2022 to 9 June 2022 (inclusive).[279]The cases of Burns -v- Santander, Kent County Council -v- Knowles and North West Anglia NHS Foundation Trust -v- Gregg are precedent for when deductions from wages are unlawful in a situation where police investigations are ongoing. The default position is that unless there is a provision in a contract allowing the deduction where the employee is able and willing to work any deduction will be unlawful unless the employee has been remanded in custody (as this would be an impediment to the employee working).[280]Firstly, in this situation the imposition of the bail conditions of the claimant (not to attend work at CUH and not to contact anyone at the respondent) is in my conclusion a comparable impediment to being remanded in custody. In my conclusion while the claimant was subject to these bail conditions he was not able work. The claimant’s situation is, therefore, different to the facts of Knowles and Gregg.[281]Secondly, in any event, the claimant had a written contract of employment [54-58] that he had been given by Corps Security (UK) Limited prior to his transfer to the respondent. I conclude that the claimant had this contract [54-58] in his possession prior to the deductions from his wages from 12 May 2022 to 9 June 2022 inclusive.[282]I conclude that clause 23.4 of this contract [57] gave the respondent the right to suspend the claimant with or without pay pending any investigation into circumstances that would give the respondent the right to terminate the claimant’s contract.[283]I conclude that the respondent lawfully exercised this contractual right in suspending the claimant without pay from 12 May 2022 to 9 June 2022 (inclusive) as there were circumstances that could give rise to the right for the respondent to terminate the claimant’s employment.[284]In conclusion, the respondent did not make unauthorised deductions from the claimant’s wages for the period from 12 May 2022 to 9 June 2022 (inclusive).[285]The second period of time the claimant claims his wages were subject to unlawful deductions is when he was paid statutory sick pay instead of his full pay during his period of sickness from 1 August 2022 until his employment was terminated on 12[286]The claimant’s case is that this period of sickness resulted from the decision to place him on unpaid suspension in breach of the implied term of trust and confidence and this is why the deductions from his wages are unlawful.[287]Firstly, the right under section 13(9) of the ERA does not require a consideration of whether there had been a breach of the implied term of trust and confidence by the employer leading to an employee’s absence on sick leave. This is not part of the statutory right under section 13(9) of the ERA. Secondly, in any event, I concluded above that there had not been a breach of the implied term of trust and confidence by the respondent.[288]I also conclude that both the written contract of employment [54-58] and the respondent’s handbook [59-132] informed the claimant that while he was absent due to sickness he would only be entitled to statutory sick pay (and not full pay). The written contract of employment [54-58] refers to management discretion to pay Company Sick Pay as outlined in the handbook. The respondent’s handbook, however, simply states that the respondent is responsible for paying statutory sick pay to the claimant.[289]In conclusion the respondent did not make unauthorised deductions from the claimant’s wages during the time the claimant was absent from work due to sickness from 1 August 2022 until 12 September 2022.[290]The claimant’s claim of unauthorised deductions from wages is not well-founded. This means the claimant’s claim for unauthorised deductions from wages is unsuccessful. Approved by: