Mr C Daley v Vodafone Automotive Ltd: 2400256/2019
EMPLOYMENT TRIBUNALS
Case No 2400256/2019
Between
Mr C DaleyClaimantVodafone Automotive LtdRespondent
Before
Employment Judge Tom RyanMrs M Peckham (instructed by Solicitor) for respondentDate 19 April 2022
JUDGMENT
[1]The complaint of disability discrimination is not well-founded and is dismissed.[2]The complaint of unfair dismissal is well-founded and it is declared that the claimant was unfairly dismissed.[3]The tribunal makes no award of compensation in respect of unfair dismissal. _ JUDGMENT having been sent to the parties on 14 November 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]By a claim presented to the Tribunal on 14 January 2019 Mr Daley complained of unfair dismissal and disability discrimination in relation to his role as a Warehouse Supervisor at Vodafone Automotive Limited in Burnley. The respondent defended the claims. The claims both arose out of an incident that occurred on 4 October 2018.[2]The case was considered at a preliminary hearing by Employment Judge Sherratt and the issues in the case were identified. They have been captured succinctly in the respondent’s skeleton argument at paragraphs 1-8 as follows: 2.1. Whether the respondent treated the claimant unfavourably by dismissing him because of something arising in consequence of his disability; 2.2. If it did, can the respondent show that the treatment was a proportionate means of achieving a legitimate aim, with that legitimate aim being set out in the respondent’s response (page 26 of the bundle)? 2.3. What was the reason for the claimant’s dismissal? Was it a reason related to his conduct? 2.4. Did the dismissing officer believe that the claimant was guilty of the conduct alleged against him? 2.5. Did the employer have in his mind reasonable grounds upon which to sustain that belief? 2.6. Had the employer carried out as much investigation into the matter as was reasonable in all the circumstances of the case? 2.7. Was the decision to dismiss the claimant fair in all the circumstances, in particular was the decision within the range of reasonable responses open to a reasonable employer? 2.8. Was the process followed, including the appeal, fair?
Evidence
[3]The claimant gave evidence in support of his own case. The respondent called Mr Stephen Watkinson, the investigating officer; Mr Mark Oldham who dismissed the claimant; and Mrs Michelle Harvey who conducted the appeal.[4]We were provided with witness statements from all those witnesses, a bundle of documents and in addition on behalf of the claimant we were provided with a copy of the case of Sadeghi v TJX UK (Case 2200211/2017) heard at London Central, and in the course of final submissions Mrs Barton referred us to a decision of the Employment Appeal Tribunal in Baldeh v Churches Housing Association, Dudley District UKEAT/0290/18/JOJ.[5]We should say that in addition to the issues within the respondent’s skeleton argument Mrs Peckham also set out in summary the rationale of a number of cases. It is sufficient to say that we consider that the law as set out there accurately summarises the tests we have to apply.
Findings of Fact
[6]On 4 October 2018 Mr Daley went to the office to make an enquiry of Mr Ainsworth who worked in IT. The topic of the enquiry is not relevant. It concerns, in essence, whether some request that he had made legitimately, and everyone agrees that it was a legitimate request, for some software licensing had been carried out after a period of three weeks. When it transpired that it had not, Mr Daley became frustrated. As recounted that very same afternoon in a meeting, he said that in the discussion it was Mr Ainsworth who “lost it” (i.e. his composure) first. He, Mr Daley had raised the issue of the license some three weeks earlier. It was a simple job, now Mr Ainsworth was saying that they needed a ticket (i.e. a written request for it). The claimant said, “Why wasn’t that said three weeks ago? Now we need a ticket”. Mr Ainsworth said he had a heavy workload and had to refer it to another employee, Linda. The claimant said, “what is this ticket shit all about and why say nothing for three weeks?”.[7]According to the claimant in that first statement, Mr Ainsworth was becoming agitated and Mr Daley suggested he calm down. According to the claimant Mr Ainsworth clearly had something he wanted to say so Mr Daley suggested that if he could “talk about it here we could do it outside”. He said he felt that Mr Ainsworth’s attitude “stinks”. It was simple to transfer the license. He had been asking for three weeks and now they needed a ticket.[8]This was stated to Mr Watkinson and Ms Evans who were investigating the fact that Mr Ainsworth had complained that Mr Daley had been offensive, threatening and intimidating towards him, repeatedly directing foul and abusive language at him, making personal insults and challenging him, stating “what are you going to do about it?” and “Go on then, let’s go outside”.[9]This was said in the office where Mr Smith was on the phone but was able to observe what happened. Mr Smith was interviewed. He spoke about Mr Daley becoming increasingly annoyed; Mr Ainsworth becoming more stressed; the tone of the conversation becoming louder, and then Mr Watkinson recorded that Mr Ainsworth said he had a lot of work on and needed a ticket, which seemed to draw Mr Daley in further, demanding he needed it doing. Mr Ainsworth said that Mr Daley should not speak to him like that in work, and although the claimant disputes these comments, according to another witness Mr Dunn, Mr Daley was now clearly angry and came right up to Mr Ainsworth and said, “So come on, outside then”. Mr Ainsworth was described by Mr Smith as “shell shocked”. Mr Daley stormed out of the office, according to Mr Smith, swearing, and made some comment about makeup.[10]We explain the significance of the comment about makeup. Mr Daley had been in the army and the expression in the army “Go and fix your face,” or “Go and fix your makeup,” is there used in a mildly insulting way to mean “Go and calm down”. In fact, although it may not have been known to Mr Daley, Mr Ainsworth is a young man with very bad acne for which he used makeup to conceal the condition. So he took the remark personally.[11]Mr Smith was asked to put his recollection in a witness statement, which he confirmed he would do.[12]Mr Dunn, who had also been there and on the phone, said he did not witness what happened but heard loud voices. He heard something of the conversation and he described Mr Daley as being “loud and seeming angry and threatening”. When Mr Dunn went over to see what was happening Mr Daley looked very angry and Mr Ainsworth was extremely pale and looked very upset. He said he did not hear all that was said but did hear Mr Ainsworth say “We are in work”, and “You should not be saying that”. Mr Dunn said he would provide an email setting out his account.[13]Mr Dunn also suggested to the investigators they should speak to Ben Scott and Steve Waddington who actually worked downstairs and were not in the office at the time, because Mr Scott had come up and asked what had been going on as Mr Daley had come down and said something about Mr Ainsworth. So that is what the investigators did. Mr Scott said that Mr Daley had come down into Production and that Mr Scott had asked him what was up. The note reads: “CD stated he had had a run in with IT as CD had been waiting for three weeks for a job to be done and Linda had not signed it off. It had ended up with CD said he would take him outside.”[14]Mr Scott could not say what the tone was as he was not there.[15]Mr Waddington was asked about this. He said that Mr Daley had come into Production and something about moving a printer and nothing had been done for two weeks or more; the situation had got heated. Mr Ainsworth said something like “you can’t say that to me” when CD said he would take him outside. Mr Watkinson asked Mr Waddington what the tone was and Mr Waddington said it was “aggressive” and could see how it could have been seen as threatening if CD had actually said it in the way recorded. In other words, Mr Waddington was describing the tone which Mr Daley used when describing what he had said, so it clearly was not observing anything in the office but was speculating that it would be seen as threatening if it was said in the same way.[16]Mr Daley was suspended on full pay because of the allegation that we have recorded. He was to go to an investigation meeting.[17]After the suspension meeting Mr Daley had a conversation with Mr Watkinson and Ms Evans which he said would be off the record. They said they would have a discussion with him, and Mr Watkinson was later to record this in a statement (168) in which, having said that, Mr Daley said to him: “If I would have known it would come to this I should have just fucking punched him.”[18]Mr Watkinson said that he had not given a copy of that comment to Mr Oldham, the dismissing officer, or made him aware of that comment. It later came to the attention of Mrs Harvey at the appeal stage. In his evidence Mr Daley said that he had not said “I should have just fucking punched him” but words to the effect of “I might as well have punched him”. The distinction between two is probably of little significance. What is important is that it was brought to the attention of Ms Harvey.[19]Before the investigation meeting Mr Smith had written a statement. He gave details about discussions about the ticket and why he waited for three weeks. The relevant part of the statement, it seems to us, is this: “Chris appeared to be angered by Adam’s bluster and was abusive back to him, although I cannot recall the exact words. He did swear on more than one occasion. Adam became more emotional and raised his voice saying something like ‘I’m not standing for this’ and ‘you cannot talk to me like this at work’. At that point Chris leant forward[ed] and said, ‘Ok then, let’s take this outside then’. Adam said, ‘I cannot believe you just said that to me. You are crazy’. Adam was clearly shocked by this and again said something like, ‘You cannot talk to me like that’. Chris left the office in a cloud of swear words and made some reference to Adam wearing makeup as he left the office. Adam was clearly very emotional at this point, even telling himself to calm down under his breath. I believe he rang Linda to explain what had happened but was struggling to contain himself. Shortly afterwards he said he could not work here with him around, took his stuff and returned to Burnley.”[20]Mr Ainsworth’s statement of the same day, so far as the words are concerned, he described Mr Daley as being aggressive when he said “what are you going to do about it?”. He said as I replied: “What do you mean what am I am going to do about it? We are in a workplace. Are you honestly going to speak to me like that? Chris then walked towards me at my desk at a fast pace and leant forward with his face in close proximity to mine. At this point he said, ‘come on them, let’s go outside’. It was clear to me that he was insinuating he wanted to fight. In disbelief I said I can’t believe you are doing this in a place of work. This is unacceptable.”[21]For a second time he said Chris repeated “come on, let’s go outside”. He then left the room. He then described the effect upon him.[22]Mr Dunn in an email wrote to Mr Waddington and Ms Evans and he said this: “I was sat at Mike’s desk. I was on the telephone. I didn’t overhear all that was said. I heard Adam say he needed to raise a ticket. He did say it twice, and yes it was loud, not threatening in my view but loud. I then heard Chris’ voice which was loud and in my view did seem angry and threatening, especially when I went over to see what was happening. He did look very angry and Adam was extremely pale and looked very upset. I didn’t hear all he had said but I did hear Adam say ‘we’re in work, you shouldn’t be saying that’. It happened very fast so can’t really say any more than that.”[23]The claimant was spoken to at an investigatory meeting on 10 October. He persistently denied that he had spoken in an aggressive of threatening way to him. He denied that he had sworn and he omitted that he had said they speak outside but that was because he wanted to have a private conversation. It was not a threat. He made reference to his health, saying that: “Aside from this my health as you are well aware is not the best. What I am getting at here is:(1) I cannot make a fist;(2) If I bend down I cannot get back up;(3) I would not fight with a kid.”[24]Mr Watkinson confirmed it was not the claimant’s intention to fight but said the the claimant, “you did say come on, let’s go outside”. The claimant said, “if I would have said let’s sort this out in the boardroom or kitchen we would not be in the same situation”, and the claimant answered “correct.” That was consistently the claimant's account throughout the proceedings.[25]Mr Smith was spoken to again on that day. He was asked if Mr Daley used foul and abusive language, and she said “it is as my statement. CD did swear and left the office in a cloud of swearing”.[26]The claimant submitted a grievance on the same day (10 October). He went into some detail as to what happened. He maintained his account of the way in which he spoke to Mr Ainsworth and what he said, but he said in addition: “You are aware of my extremely poor current health condition of severe arthritis in my hands and my spine which make simple everyday tasks a struggle, and this is clear to see. It would make it impossible for me to engage in any physical altercation, nor would I want to I’m far too professional for that. I find this accusation defamation of my character and I do not accept this.”[27]The disciplinary hearing took place on 18 October 2018. The notes are at pages 173-176, at the conclusion of which Mr Oldham adjourned and considered it and then came back and gave his decision. We make this point only in relation to the notes of the hearing. Mr Oldham asked Mr Daley why should Mr Smith make up a statement against him because he [Mr Oldham] through that Mr Smith was an honest man. The claimant was in fact to say that he thought that because Mr Smith’s son, Tom (who was a poor employee, was managed by him and he had reported him on a number of occasions) that Mr Smith had told lies about him. At all events, the submission made on the claimant's behalf was that Mr Oldham did not, because of this fact, properly consider the witness statements. We consider that that submission has no foundation. It is clear from the notes, which the claimant accepted were a reasonably accurate record, that there was discussion about all of the witnesses and what they had said and the claimant was given a chance to respond to it.[28]In the meeting that took place shortly thereafter Mr Oldham said he had taken on board all points of view. He recapped that Mr Scott and Mr Waddington both stated that Mr Daley was heated after the altercation and that the claimant agreed he was in a raised state. He took on board that the claimant had stated that Adam was the instigator and he said, “I don’t believe this to be true. In my view you came into the room and started a conversation which became heated, the tone of the discussion was raised but Adam did not get aggressive, you did”. He said he believed Mr Ainsworth’s raised voice was in response to the claimant's raised voice. He said: “Taking into account David’s statement, the bit about wanting to take him outside, I don’t believe your version of events at this point. You were, in your own words ‘heated’. I believe you were confrontational and could be perceived as aggressive. Why would you say ‘let’s go outside’ other than to escalate the situation? It is my opinion that when you stated ‘let’s go outside’ this was perceived to be more than for a quiet chat. You made Adam feel threatened by your comment. He was so threatened that he did not feel comfortable at the warehouse or working at Blackburn and had to return to Burnley. In my mind the investigation undertaken proves this beyond reasonable doubt.”[29]He informed the claimant he had been found guilty of gross misconduct and would be dismissed with immediate effect. He told him of his rights of appeal.[30]In a letter at page 179 written on 24 October 2018 Mr Oldham confirmed his substantive reasoning in slightly different terms.[31]The claimant submitted a long appeal notice restating his position and making comments about the evidence of the other witnesses. In the course of that at page 181 he talked about his ill health problems, including depression and arthritis. He referred again to Mr Smith not being an impartial witness.[32]At page 185 in the first paragraph for the first time he said that the company was aware from his sick notes that he had been suffering with severe depression since April 2017, that he was on strong doses of sertraline to help manage the condition and some of the side effects of the depression are anger, frustration, irritability and anxiety, and that the medication also has similar side effects. He said “if at any point the company asked me about my condition I would have openly discussed this”, but he went on to say: “I do not accept I behaved in an inappropriate way and that what happened that day should not [sic] have resulted in dismissal. I would like to highlight with this medication it can make you react differently to situations which I may not be aware of.”[33]The appeal was dealt with by Mrs Harvey on 28 November 2018. It was rehearing. The notes at page 197 state that. The notes were taken by Mr Morris. The claimant again accepted it was a reasonably accurate record. He did not suggest at any point that he had not had a fair opportunity to put across his side of the matter.[34]The appeal discussed the claimant's health issues as well as the circumstances which led to the decision to dismiss, and at the conclusion of the appeal he confirmed there was nothing else that he wished to add.[35]The outcome of the appeal was a letter of 10 December 2018 in which Mrs Harvey sets out her grounds for dealing with it. In that for the first time (page 205) when she was dealing with raised voices she said this: “On further investigation it has come to light that you stated off the record ‘if I’d known it would have come to this I would’ve hit him’ to both Mick Evans and Steve Watkinson. Whilst they have a moral obligation to treat such statement in confidence such a statement is not legally binding and with the potential of an Employment Tribunal claim we would have no other option but to record this discussion.”[36]The rider is clearly something, as she admits, that has been provided by Human Resources, but that is the first time when the claimant was made aware of his “off the record” discussion, as he believed it to be, having been notified to the employer.[37]Mr Watkinson could not recall specifically how it came to Mrs Harvey. Mrs Harvey’s evidence, which we accepted on this point, was that together with the pack (i.e. containing the previous documents) Mr Morris had also provided Mr Watkinson’s note that we have recited already and that is how she became aware of it. At no point did Human Resources suggest to her, this being her first appeal, that before she conducted the appeal she should make the claimant aware of it and it did not occur to her to do so. She recognised that it was a piece of material evidence that would be corroboration of the accounts given by the witnesses, because in the terms in which it was expressed it suggests that beyond the possible making of a threat the claimant was also stating that beyond the threat he might as well have carried out the action that was threatened.[38]In her appeal decision at the penultimate bullet on page 205 Mrs Harvey dealt with the question of the ongoing medical condition. She said: “On further investigation this was not an issue raised by you during the investigation or the disciplinary hearing. We discussed this during your appeal and again on the balance of probabilities I felt there has [sic] been no trigger points during the past 18 months that have raised concerns to the company that would have required a medical assessment to be undertaken. The company has been extremely supportive towards you, particularly around the issue of arthritis. What I find difficult is that on the one hand you are denying that your behaviour was inappropriate at any stage during this incident, yet are seeking to explain the alleged behaviour that you did display was because of a medical condition. You did provide the documentation that amongst arrange [sic] of possible side effects, the behaviour was one of those side effects. You did raise the question of investigations with other members of staff as to your behaviour and there is consensus that they had not seen any significant change in your behaviour during the last 18 months, which confirms the point that there is no evidence of trigger points that would have warranted further investigation.”[39]Mrs Harvey came to the conclusion that notwithstanding everything she had read she considered that the appeal must be rejected and she confirmed the dismissal stood, but decided that as a gesture of goodwill the claimant should be paid a sum equivalent to one month’s notice, which normally would not be the case for somebody who was dismissed for gross misconduct.
The Law
[40]The relevant provisions are to be found, so far as unfair dismissal is concerned in s 98 of the Employment Rights Act 1996 and the cases of: British Home Stores v Burchell [1978] IRLR 379 EAT (the test of genuine belief upon reasonable grounds after a much investigation as is reasonable); Iceland Frozen Foods v Jones [1982] IRLR 439; (dismissal must be within the range of reasonable responses) and Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 (the “reasonable range” test extends to the investigation element).[41]We also remind ourselves of the need diligently to avoid substituting our decision for that of the employer. See: Burchell and Hitt above and London Ambulance Service NHS Trust v Small [2009] IRLR 563, Orr v Milton Keynes Council [2011] ICR 704 and Turner v East Midlands Trains [2013] IRLR 107 CA.[42]It is also necessary to consider sections 122(2) and 123(6) of the Employment Rights Act 1996 and Polkey v A E Dayton Services Ltd [1987] IRLR 503 HL in relation to remedy.[43]So far as the claim under section 15 of the Equality Act 2010 is concerned, the section provides that a person discriminates against a disabled person if he treats a disabled person unfavourably because of something arising from or in consequence of the disabled person’s disability, and he cannot show that the treatment is a proportionate means of achieving a legitimate aim. Section 15(2) disapplies section 15(1) if it shows that the person did not know or could not reasonably be expected to know that the claimant had a disability.[44]In the case of Secretary of State for Justice v Dunn [2016] UKEAT/0234/16/DM the EAT identified the requirement of section 15(2): there must be unfavourable treatment, something that arises in consequence of the disability; the treatment must be because of it and the discriminator cannot show the unfavourable treatment is a proportionate means of achieving a legitimate aim.[45]In terms of the issues in respect of the section 15 claim they are these: 45.1. Dismissal was unfavourable treatment. There was no dispute about that. 45.2. The respondent acknowledged the claimant was a disabled person at the material time. 45.3. No point at all has been argued before us in relation to section 15(2) (knowledge) because clearly the medical evidence was available, as Ms Harvey accepted, which showed depression and osteoarthritis which are the basis of disability. 45.4. The “something” that arises in consequence of the claimant’s disability was identified by Employment Judge Sherratt at the case management hearing on 15 April 2019 as this: that the respondent did not take into account that someone with his disability would not offer to take someone outside with physical violence in mind.[46]The respondent did not accept that the claimant merely wanted to talk to the third party outside where it was quiet and/or private. Therefore it is necessary for the Tribunal to find that the “something” that arises in consequence of the disability is that someone with his disability would not offer to take someone outside with physical violence in mind, and the unfavourable treatment must be “because of” that “something” arising in consequence.[47]Finally, can the employer show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.
Conclusion
[48]The claimant’s case in relation to section 15 causation is difficult. He is saying that the threatening behaviour and language did not occur. But submits to the Tribunal that if it finds that it did occur, or if the respondent was correct to find it did occur, the respondent should have taken into account that the reason for it (or part of the reason, more than a trivial reason) was because of something that arises in consequence of the disability.[49]It is possible that depression can cause outbursts of anger. The medical evidence supports that. We have seen a medical report from 2019 after the event, and the claimant said it as well to Mrs Harvey. It is possible that the medication itself may cause that as a side effect. There was no evidence before the employer at either stage when the decisions were taken that would enable them to form the conclusion that that was why the claimant acted as he did. In other words, the “because of” element of the test is not established.[50]In addition, the “something that arises”, namely the propensity to carry out a threat, is different from the “something that arises” identified by Employment Judge Sherratt, that is he would not offer to take someone outside with physical violence in mind. The claimant himself, we think, probably would acknowledge that the mere fact that a person was not in a physical position to carry out a threat of violence would not stop them, perhaps in an act of bravado or just to make the point more strongly, from uttering the threat.[51]In any event, the respondent’s defence to this is that if, as we find it did, conclude on reasonable grounds, that the threatening behaviour occurred, the legitimate aim would be a statutory as well as contractual obligation to provide a safe working environment for staff.[52]Against that the claimant can advance no argument. Once those matters are established then a dismissal and the upholding of a decision to dismiss, it is argued, are a proportionate response in achieving that legitimate aim.[53]If you employ someone who, either through ill health or disability or temperament, as the case may be, utters threats to another member of staff when they become frustrated, then what response (the respondent asks rhetorically) short of dismissal can be provided to fulfil the contractual and statutory obligations to provide a safe working environment for staff?[54]In our judgment that is a powerful argument. It has been raised properly, and on the balance of probabilities it is made out.[55]Therefore, even if the claimant had satisfied the earlier stages of section 15 then, in our judgment, the defence would have been made out. For that reason, we do not uphold the claim for disability discrimination.[56]We return to the claim for unfair dismissal. The first question for the Tribunal is: did the respondent have a genuine belief in the misconduct alleged? Of that there is little doubt, and in truth there is no substantive argument about that. Although later the claimant and his daughter were to say that Mr Oldham was biased, which would suggest it was not a true belief, that was not a point that was properly explored in evidence and in any event there was no basis for doing so. The fact that both Mrs Harvey and Mr Oldham genuinely believed that the claimant had committed the conduct in our judgment is well made out.[57]The arguments from the claimant in respect of reasonable grounds and the thoroughness of the investigation overlap. Suffice it to say that on the basis of the evidence that we have recited it seems to us that it provides, at the very least, a reasonable ground for the belief that Mr Daley on this occasion overstepped the mark and committed the conduct that was alleged against him.[58]The argument that Mrs Barton puts forward on behalf of the claimant at several stages is that different employers could have done different things. She makes a point for example that we will come to in relation to sanction. Another employer could have adopted the procedure this employer had in its handbook as, short of dismissing for gross misconduct, suspending without pay for five days and placing someone on a final written warning. She also prays in aid, for example, the severity of the sanction.[59]All these are good points, but the test that we have to apply in relation to the reasonable range of responses, which we come to next and will return in a moment to investigation, was this: can the Tribunal say that given the findings of reasonable grounds and genuine belief no reasonable employer could reasonably have dismissed for this misconduct?[60]Put in that way, and it is not a way in which Mrs Barton engages with it, it cannot be said that that is the case.[61]The remaining ground, on which we think that the claimant does succeed, is one of investigation. The requirement is that the investigation must be one which a reasonable employer could reasonably have carried out. We come down on the side of the claimant in this argument for the reasons we set out below. But we make clear at the outset that this was a fine balance. It was not a conclusion that we reached without considerable debate. It is based simply on that short statement from Mr Watkinson, about the “off the record” conversation.[62]Mr Watkinson, in our judgment, rightly did not place that before Mr Oldham. We say “rightly” because he acknowledged the moral obligation behind an “off the record” conversation, and we make no criticism of him for that. But it was placed before Mrs Harvey and it appears to have been done so by HR. Mr Watkinson wanted to put it on the record, recognising that I think probably Tribunal proceedings might ensue if the claimant’s dismissal were upheld. Whatever the reason for doing it, it was there in writing.[63]Had it been before Mr Oldham on the same basis we do not think that the employer could have been criticised for that, because it was at least in part capable of amounting to an admission. Had it been placed before Mr Oldham the claimant would have known that and could have argued about it, and if that had occurred then at the point when it was put before Mrs Harvey he would have known about it.[64]It is suggested by the respondent that it was only a small point of corroboration and it would have made no difference to the outcome. The problem with that argument is that the submission is contrary to the decision of the House of Lords in Polkey. The fact that a procedural irregularity could have made no difference does not entitle the Tribunal to say that the dismissal was not unfair.[65]Section 98(4) requires the Tribunal to engage with the question in the round. Not every procedural irregularity will render a dismissal unfair. But the more serious or significant the procedural irregularity is found to be the more likely it is that a tribunal may say it renders the prodecure unfair.[66]The reasons why we consider that placing that document before Mrs Harvey and yet not putting it to the claimant for his answer and investigation comes down on the side of rendering the investigation outside the range of reasonable investigations is as follows. 66.1. A decision had been taken to dismiss the claimant without that information being considered by Mr Oldham. 66.2. Clearly Human Resources at that stage did not think it was vital to their case to put it forward. 66.3. It is material that goes directly to the issue in the case, namely the gravity of the behaviour of the claimant. 66.4. If it was going to go just on the claimant's file pending the day of this hearing that would be one thing but somebody, decided that Mrs Harvey should have it at the appeal stage. We do not know why that occurred. The obvious inference is to bolster a case which might, or might not, need bolstering. There could be no other reason for doing it. Any competent Human Resources person must know that if you are going to put forward a significant piece of evidence, which might go to the heart of a decision and speaks of the very subject of the dispute itself, that, as a matter of fairness, is something that an employee ought to be able to see and prepare to answer. 66.5. Regrettably, Mrs Harvey did not think to show it to the claimant, and had she not referred to it in her outcome letter the claimant might never have known about it. The fact of the matter is that she did read it. She was not advised about it by Mr Morris. It does not appear to have occurred to Mr Morris or anybody at the latter stage to consider that the claimant had never seen it. 66.6. It was referred to only in the outcome letter. The claimant is entitled to say that this was a significant piece of evidence. He thought it was confidential. He disagreed with the way in which his language had been recorded. It might well have been that in those circumstances Mrs Harvey would have thought it was not right to take it into account or refer to it in the outcome letter but at least the claimant would have had a fair opportunity to deal with it.[67]In our judgment taking those matters together that is sufficient to take this, even though it is a single point and we acknowledge it might not make any difference at the end of the day, out of the range of reasonable investigations, and it renders the dismissal unfair. The claimant on that basis is entitled to a declaration that his dismissal was unfair. What are the consequences?[68]So far as it being a procedural irregularity is concerned, we consider first the question of Polkey and the question of whether, if the employer had not committed this procedural irregularity, the claimant would have been dismissed fairly, and if so at what stage. Because it was, in the analysis, a corroborative piece of evidence, we do not accept that it would have made any difference to the outcome. Regrettably for the claimant we find that he would have been fairly dismissed in any event.[69]Neither can it affect, even if it would have taken some time for the respondent to raise it and then hear the claimant on the point, affect the financial outcome of the case.[70]Even if there had been an adjournment of the appeal for a week to sort out, although we do not think it would have taken more than half an hour to sort out, the claimant was not being paid at that stage.[71]This was not at the dismissal stage whereby it would have put the dismissal back by a week. It was at the appeal stage. There is no effect on compensation by this irregularity.[72]Moreover, we consider that in terms of any possible compensatory award section 123(6) is in play: “Where the Tribunal finds that dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.”[73]Turning to the basic award, a similar but slightly differently phrased provision at section 122(2): “Where the Tribunal considers any conduct of the employee before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”[74]We invited Mrs Barton on this point to say why compensation should not be reduced in the light of our findings, which we adumbrated to her. Her argument was that Mr Oldham should have looked into the witness statements more, he took the statement of Mr Smith as it was, and matters of that sort. “They could have not dismissed”, she did. “They didn’t act reasonably, didn’t follow up on the piece of information from Mr Watkinson, they could have given the claimant an opportunity to regain his trust, they should have sent him to Occupational Health to understand the background, his previous good record was not taken into account, and if he could have been given a final written warning it would have been a better approach”. Whilst all those matters might be relevant to some part of the claim, in our judgment they are just not relevant to the question of reduction.[75]In short, whilst we recognise the claimant's sense of grievance by not having had this information disclosed, we consider firstly that in respect of both elements of the award his conduct was the cause of his downfall and in those circumstances, and not having criticised the respondent, we find that there should be no basic award and no compensatory award.
Conclusion
[1]This is an application for reconsideration of the judgment sent to the parties on 25 October 2019 (and written reasons sent to the parties on 29 January 2020).[2]By that judgment and for those reasons the claimant’s complaint of disability discrimination was dismissed. The complaint of unfair dismissal was upheld but the tribunal made no award of compensation to the claimant.[3]The tribunal's powers concerning reconsideration of judgments are contained in rules 70 to 73 of the Employment Tribunals Rules of Procedure 2013. A judgment may be reconsidered where “it is necessary in the interests of justice to do so.” Applications are subject to a preliminary consideration. They are to be refused if the judge considers there is no reasonable prospect of the decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the judge considers it in the interests of justice, without a hearing. In that event the parties must have a reasonable opportunity to make further representations. Upon reconsideration the decision may be confirmed, varied or revoked and, if revoked, may be taken again.[4]Under rule 71 an application for reconsideration must be made within 14 days the date on which the judgment (or written reasons, if later) was sent to the parties.[5]The approach to be taken to applications for reconsideration was set out in the recent case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA in the judgment of Simler P. The tribunal is required to: 5.1. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage; 5.2. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and 5.3. give reasons for concluding that there is nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision.[6]In paragraph 34 and 35 of the judgment Simler P included the following: “A request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where … a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[7]The judgment and reasons were given orally 24 October 2019.[8]On 25 October 2019 the claimant’s daughter Mrs Barton, who represented the claimant at the hearing, wrote to the tribunal asking for the tribunal to “review the decision”. Mrs Barton sent a copy of a report dated 7 March 2019 on the claimant’s health from his GP, Dr Hussain; a copy of the judgment of the EAT in Baldeh v Churches Housing Association of Dudley & District Ltd. UKEAT/0290/18/JOJ and a document which appears to be from an NHS website “Why am I so angry?” At the same time Mrs Barton asked for the tribunal’s reason in writing.[9]When the reasons were sent out in writing I caused the tribunal staff to write to the claimant asking him to submit any further grounds for an application for reconsideration within 14 days.[10]On 5 February 2020 Mr Daley sent in a letter addressed to me which appears to contain the grounds for the application. He also attached: 10.1. Copies of the earlier submitted documents from Dr Hussain and the NHS website; 10.2. A copy of the judgment in Brito-Babapulle v Ealing Hospital NHS Trust UKEAT 0358/12/BA; and 10.3. A Mild Cognitive Impairment leaflet published by Northumberland, Tyne and Wear NHS Foundation Trust.[11]I have considered these documents. I have focussed on the letter setting out the grounds. The supporting documents which I accept might be material if a tribunal were considering the claim afresh do not assist the claimant in making out his application for reconsideration. Although his application does not state this I infer that his argument is that it is in the interests of justice that the judgment be revoked and the case reheard because of the matters that he sets out and which I summarise below. 11.1. Under the heading “Clarification of Disability” the claimant says that in the light of the anger management leaflet the respondent failed to consider mitigating factors and referred to the Ealing Hospital case. 11.2. Under the heading “Claim that the outcome by the respondent was prejudged.” The claimant sets out an argument about the conclusion of the disciplinary officer and the process. 11.3. Under the heading “Failure to complete a thorough investigation” the claimant alleges that the investigation was “not carried in accordance with the ACAS guide”. It is clear from the claimant’s document that he is referring to the investigation at this point rather than the disciplinary/appeal process. 11.4. The next heading is “Claim of failure to carry out a fair appeal”. This appears to be a further argument in relation to the fairness of the appeal process. 11.5. The last heading is “Clarification of the issue”. This appears to refer to a finding of fact made in the judgment. The “issue” in this case is the matter which the claimant raised with his colleague Mr Ainsworth and which was the factual background to the matters that followed leading to the disciplinary process and the claimant’s dismissal.[12]I recognise that the claimant is a litigant in person and is, understandably, seeking to have his case reconsidered and have it heard afresh by a different tribunal. Whilst he does not say this in any of his correspondence, I assume in his favour that that is what is asking the tribunal to do. I note that in his application he does not distinguish between the complaint of disability discrimination which was dismissed and the complaint of unfair dismissal which was upheld albeit without remedy being awarded. Furthermore, I note that of the 5 matters that I have summarised only the 1st specifically refers to disability.[13]In my judgment the two paragraphs which I have quoted above from Simler P are entirely on point in analysing the way in which the claimant sets out his application. Each of the matters which the claimant raises are attempts to reargue matters that were raised in the tribunal hearing. I consider that the claimant’s application falls squarely within the description which the EAT in Liddington stated should not give rise to an application for reconsideration, “in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice”.[14]If the claimant’s points or indeed any further argument that he might mount give rise to a discernible error of law then his path to correct that lies, not by way of an application for reconsideration, but by way of an appeal to the Employment Appeal Tribunal.[15]I consider that the claimant has not provided any sustainable basis upon which a tribunal properly directing itself could consider that it was in the interests of justice to reconsider the judgment and vary it or revoke it and order a fresh hearing.[16]For those reasons I refuse the application for reconsideration at this preliminary stage.
Introduction
[1]This was a hearing to deal with discrete matters which are set out below after His Honour Judge Shanks at the Employment Appeal Tribunal allowed an appeal by the claimant against the Employment Tribunal’s refusal of the claimant’s unfair dismissal claim on the grounds that the Employment Tribunal had failed to consider the adequacy of the employer’s investigation in relation to whether his misconduct may have been caused by his depression and/or the side effects of the medication he was on for it.[2]The original Judgment was sent out to the parties on 31 January 2020 and the Tribunal consisted of Employment Judge Tom Ryan, Mr Wilson and Mr Gill.[3]Because of Judge Ryan's retirement the matter has been sent to a fresh Tribunal consisting only of Employment Judge Robinson.[4]On the first morning of this hearing the administration had set the matter down before three panel members, but I discharged the two lay members as the matter only consisted of a reconsideration of the unfair dismissal element of the claimant’s claim.[5]Consequently, I sat alone and heard evidence from one respondent witness, namely Mrs Harvey, who had rejected the claimant’s appeal from his dismissal.[6]The EAT remitted the matter to my Tribunal to consider the three issues set out below. His Honour Judge Shanks confirmed that in general the factual findings made by the Tribunal can stand and the Judgment of Employment Judge Ryan's Tribunal can stay in place subject to the three issues to be decided today. The issues to be decided[7]In paragraph 12 of the EAT’s decision the three issues were set out as follows:(i) whether the respondent’s investigation into the claimant’s mental health and medication he was taking and the effect on his behaviour was reasonable and if not whether the dismissal was unfair as a consequence;(ii) if the reason was unfair whether a Polkey reduction should be made to the compensation;(iii) if dismissal was unfair for that reason whether any reduction in relation to contributory fault should be made.[8]Those were the only issues before the Tribunal. Issues relating to disability discrimination are not to be dealt with today as those matters were dealt with by the first Tribunal, the EAT and subsequently, on an application to amend the claimant's ET1, a refusal of an amendment application by Regional Employment Judge Franey on 25 November 2021 after both parties had submitted submissions regarding the late amendment application by the claimant. The facts from today's hearing[9]The involvement of Michelle Harvey, who is a senior manager for the respondent company, began after Mr Mark Oldham, the Customer Service Director for Vodafone, dismissed the claimant on 18 October 2018 which was confirmed by letter of the 24 October 2018.[10]The claimant appealed that decision to Ms Harvey and on 28 November 2018 the claimant attended the appeal hearing before Miss Harvey. Miss Harvey was accompanied by Mr Josh Morris, the HR professional at Vodafone who acted as a note taker at that hearing.[11]There are no issues with regard to the process of that appeal as the claimant had been offered the opportunity of having with him either a trade union official or another work colleague. He had received the full pack of documents that were before Miss Harvey. Miss Harvey, prior to the hearing, had reviewed all the documentation provided to her.[12]The claimant found himself in difficulties with management after an incident which took place on 4 October 2018 when there was an altercation between him and an IT officer at the respondent company, Mr Ainsworth. The details of that incident do not need to be gone into save to say that Mr Oldham decided to dismiss. However it is important to note that the respondent’s disciplinary officer found that it was the claimant who was aggressive towards Mr Ainsworth to such an extent that Mr Ainsworth had to leave the workplace on the particular day of the incident as he was so upset about the claimant’s attitude towards him.[13]The criticisms of Miss Harvey in Employment Judge Ryan's written Judgment stand, as does the Tribunal's conclusion that the claimant’s claim under section 15 of the Equality Act 2010 fails. Employment Judge Ryan's Tribunal however found that the decision of Miss Harvey was tainted by the fact that there was no reasonable investigation of a single issue and therefore the dismissal was unfair. That single point concerned Miss Harvey recording in her letter of 10 December 2018 telling the claimant that his appeal had failed, in part, because of an off the record comment the claimant is alleged to have said to both Mick Evans and Steve Watkinson, officers of the respondent, that “if I had known it would have come to this I would have hit him”. That referred to his altercation with Mr Ainsworth.[14]In all other respects the decisions of the previous Employment Tribunal stand.[15]I heard from Miss Harvey today on the discrete issue as to whether there should have been more investigation of the claimant’s mental health and the medication he was taking.[16]It was accepted by Miss Harvey that the claimant had been suffering from severe depression since April 2017. She was aware at the appeal hearing of that situation and that the claimant was taking sertraline. She also knew that the claimant had arthritis and suffered from a vitamin D deficiency. Taking his medical situation as a whole the claimant suffered from low mood.[17]Miss Harvey had also seen medical reports, in particular one in March 2018 from Dr Taggart, relating to the claimant’s osteoarthritis and knew that the claimant, because of his arthritis, had had his working week shortened in order to take into account that disability. Miss Harvey therefore knew that the claimant was taking morphine sulphate for the arthritis.[18]From those reports Miss Harvey also knew that the claimant had a history of depression as well as his physical impairments and since her decision she has also seen more up to date medical evidence with regard to both his arthritis and his ongoing issues with depression.[19]At the appeal hearing, Miss Harvey did not seek additional medical information. The reason for that was that she was aware that the claimant had had absences from work and had had full dialogue with his manager. Miss Harvey knew he had suffered from depression which had been diagnosed for some 18 months whilst in the employment of the respondent.[20]Miss Harvey understood that the manager had not seen any change in the claimant’s behaviour over that period of time but the respondent had reacted to the claimant’s physical impairment by altering his working week but had deemed it unnecessary to make any reasonable adjustments with regard to his depression. Firstly, because there was no requirement to do so and secondly because the claimant had never asked the respondent company to make any reasonable adjustments. The reasonable adjustments that were made were all in response to the claimant’s arthritis and vitamin D deficiency.[21]It was put to Miss Harvey that the side effect of medication with regard to his arthritis could be angry outbursts and that the claimant had been provoked by Mr Ainsworth, and that the claimant’s reaction to that provocation was wholly or in part because he was taking that medication. Miss Harvey considered that matter at the appeal hearing but was content to note that there had been no reason to be concerned about the claimant’s role, his job or his behaviour and there had been no trigger points or incidents which raised concerns for the respondent’s managers. In short, the respondent’s managers had not seen any outbursts from the claimant over the previous 18 months and the incident with Mr Ainsworth was a one-off incident.[22]Miss Harvey took the view that the behaviour of the claimant towards Mr Ainsworth was unacceptable and could not be condoned whether it was a one-off incident or not.[23]In any event Miss Harvey found that the claimant’s reaction was so aggressive towards Mr Ainsworth that it would have made no difference to her decision to confirm the dismissal and reject the appeal even if she had had further medical evidence. Her view was that she had not only a duty of care to the claimant but also a duty of care to the whole staff of Vodafone and that from a purely health and safety issue another employee should not be placed in the position that Mr Ainsworth was placed by the claimant’s attitude towards him on 4 October 2018.[24]Miss Harvey considered whether the claimant’s mental health condition and the medication he was taking was a contributory factor or not. During the appeal hearing the claimant did not express the view that a medical report was required with regard to his mental health. Miss Harvey would have expected the claimant to have told her that he had experienced symptoms so that she could have had a dialogue with him about his mental health issues and the medication he was taking.[25]Miss Harvey was also aware, and she set this out in her letter of 10 December 2018 giving her decision with regard to the appeal, that the claimant had not raised the question of his medical condition both in relation to his arthritis or depression either at the investigation hearing or during the disciplinary process before Mr Oldham. At bullet point nine of that letter she wrote this to the claimant: “You felt that the company should have taken into account your ongoing medical conditions and had made no inquiries as to your current health. On further investigation this was not initially raised by you during the investigation or the disciplinary hearing. We discussed this during your appeal and again on the balance of probability I felt that there have been no trigger points during the past 18 months that had raised concerns to the company that would have required a medical assessment to be undertaken. The company has been extremely supportive towards you particularly around the issue of arthritis.”[26]In view of that position Miss Harvey did not believe that a further medical report was required but she did have in front of her, because the claimant brought this to the hearing, a leaflet which gave the details of the side effects a patient might suffer if they took the particular medication that the claimant was taking. Miss Harvey read that leaflet and understood what the side effects were.[27]Because of this this Miss Harvey felt that she had sufficient information to balance the interest and fairness towards the claimant and the safety of all employees. She also feels now that looking back at the situation, her decision would not have been different even if she had taken some more medical evidence for two reasons which are as follows:(1) that whatever medication the claimant was on she would still have been concerned about future incidents; and(2) that the claimant was still saying to her at the appeal that he had not acted in an aggressive way towards Mr Ainsworth and was denying any impropriety with regard to his actions on 4 October 2018.[28]Consequently, Miss Harvey's decision overall was predicated on the behaviour the claimant displayed which she felt was wholly unacceptable whether he was disabled or not and whether he was taking medication or not. She was aware that throughout the whole disciplinary process the claimant denied his behaviour had been unacceptable. At no stage did he agree that it was unacceptable, nor did he apologise for his behaviour. Miss Harvey felt that she had an obligation to make sure that all her employees had a safe place to work.[29]Miss Harvey had consulted with the claimant’s line manager as part of her preparation for the hearing. Miss Harvey had learned from that line manager that the claimant was carrying out his role appropriately and had had conversations with the claimant about his health and wellbeing.[30]Miss Harvey also confirmed that if the claimant had sought further medical evidence and had been provided to her she would have considered it but in the end even if further medical evidence had been provided it would have made no difference to her decision.[31]Miss Harvey confirmed that she did not research the claimant’s mental health issues at a “micro level” but denied that she treated every case exactly the same without taking into consideration specific issues relating to a particular employee. Miss Harvey formed the view that the claimant was guilty of the misdemeanour of which he was accused. She confirmed that she dealt with every individual who came before her with regard to disciplinary matters individually.[32]Miss Harvey therefore treated the claimant’s mental health issues and took them into account. If the claimant had marital problems or financial difficulties, she would also have taken those issues into account before making her decision. If the claimant had said that the medication had affected his behaviour then again she would have taken that into account. The claimant’s position was that he denied he had been aggressive and the fault lay wholly with Mr Ainsworth with regard to the 4 October 2018 incident.[33]The notes of the hearing on 28 November 2018 show that Miss Harvey understood that the claimant had had depression since April 2017 and that the claimant had raised the issue of health generally in his appeal letter. The notes show that Miss Harvey discussed the claimant’s performance in work since April 2017 and that to her knowledge there had been no changes in the claimant’s behaviour that would have triggered a concern by anyone within the company and confirmed to the claimant that she felt his depression was not an issue throughout this time. The claimant did not challenge that comment by Miss Harvey and the notes do not record that he did so. Miss Harvey confirmed that despite reading the medical evidence before her and the leaflet that she had received she could find no evidence that the claimant had suffered any side effects.
The Law
[34]With regard to any unfair dismissal claim the Tribunal is concerned with section 98 of the Employment Rights Act 1996 and the principles contained in the well established cases of British Home Stores v Burchell [1978] IRLR 379, Iceland Frozen Foods v Jones [1982] IRLR 439 and Sainsbury's Supermarkets Limited v Hitt [2002] EWCA Civ 1588.[35]The principles contained in those three cases are whether the dismissing officer and those involved in the disciplinary process had a genuine belief upon reasonable grounds after reasonable investigation that the employee is guilty of the misdemeanour of which he or she is charged and that dismissal must be within the range of reasonable responses of a reasonable employer and the reasonable range test extends also to the investigation element of any disciplinary process.[36]I must not substitute my view for the views of the dismissing officer or appeals officer where there has been a full rehearing and I must consider the principles set out in Polkey v A E Dayton Services Limited [1097] IRLR 503 House of Lords in relation to remedy. That is known as a “Polkey” deduction and such a deduction is described as the reduction in any award for future loss to reflect the chance that the individual would have been dismissed fairly in any event and that reduction may take the form of a percentage reduction or it may take the form of a Tribunal making a finding that the individual would have been dismissed fairly after a period of employment for example a period in which a fair procedure would have been completed.[37]With regard to contributory conduct a Tribunal may reduce an award due to the contributory fault of an employee and the size of such reduction will be that which the Tribunal considers to be just and equitable. The test differs between a reduction of basic award and other awards in particular the compensatory award.[38]The basic award may be reduced where the Tribunal considers that any conduct of the complainant before the dismissal was such as it would be just and equitable to reduce or reduce further the amount of the award to any extent. In respect of other awards wherever Tribunal finds that the act was to an extent caused or contributed to by any action of the complainant the Tribunal shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.[39]Applying that law to the facts of this case and the three issues that I have had to deal with I came to the following conclusion.[40]Was it reasonable for the respondent appeals officer, Miss Harvey, to not investigate the claimant’s mental health and medication that he was taking with regard to the effect that may have had on his behaviour? There was no evidence in the medical reports of side effects and the claimant did not raise the issue of side effects that the medication had upon him when speaking to Miss Harvey.[41]Miss Harvey was aware of the claimant’s condition. The notes that were taken at the appeal hearing I found were accurate and there is no evidence at that time that the side effects of taking such medication and the claimant’s mental health itself were mitigating factors.[42]In any event, it was reasonable for the respondent appeals officer to weigh in the balance the question of whether the claimant’s actions were acceptable. Miss Harvey made it clear that she had a duty of care to other employees within her business. The particular employee who was involved in the altercation with the claimant was frightened by the claimant’s behaviour so much so that he had to leave work on that day There was no evidence presented from the claimant that if he had kept his job that it would not happen again. Indeed, the claimant upheld his position throughout that he had done nothing wrong, that he was the victim and there was no apology forthcoming. Miss Harvey took the view nothing would be gained by obtaining further medical evidence and, in any event, she had the information from the leaflet and the claimant’s brief comments about his health made at the appeal hearing itself. To obtain further medical evidence would have simply delayed the inevitable decision by Miss Harvey.[43]Even if I am wrong in coming to that conclusion, the fact is that if a medical report had been obtained applying the principles in Polkey the chance that the claimant would be dismissed fairly in any event was extremely high and certainly any reduction in compensation would be at least 75%.[44]Furthermore, having considered the order of adjustments to compensation and having made a percentage reduction under Polkey, the percentage reduction for the employee’s contributory fault under section 123(6) of the Employment Rights Act 1996 would have been 100%. Miss Harvey felt she could not allow an aggressive employee in the circumstances set out by Mr Oldham, and confirmed by her at the appeal hearing, to continue in employment with the respondent company.[45]Consequently, I find the claimant’s claim relating to unfair dismissal should fail and is consequently dismissed