Mrs M Matewa v Bradbury & Son (Buxton) Ltd: 2400760/2024
EMPLOYMENT TRIBUNALS
Case No 2400760/2024
Between
Mrs M MatewaClaimantBradbury & Son (Buxton) LtdRespondent
Before
Employment Judge ClineIn person for claimantMr Richard Ryan (instructed by counsel) for respondentDate 20 January 2026
JUDGMENT
[1]The Claimant’s claim for unfair dismissal is not well-founded and is dismissed.[2]The Claimant’s claim for direct race discrimination is not well-founded and is dismissed.
REASONS
[1]By way of her ET1 claim form and grounds of complaint received by the Tribunal on 4th February 2024, the Claimant, Mrs Mercy Matewa, brings claims (both of which are denied by the Respondent) for unfair dismissal and direct race discrimination. It was decided at the start of the hearing that we would initially deal with questions of liability only (including issues of contributory fault and any question of a deduction pursuant to Polkey v AE Dayton Services Ltd [1988] AC 344) and would move onto issues of remedy, if appropriate, thereafter.[2]The matter was heard over 4 days and there was a deliberation day the following week; we reserved our decision at the conclusion of that deliberation day. The Claimant appeared in person; we were satisfied that she was able to participate in the hearing in a way that made it fair and we hope that our attempts to guide her along the way were of some assistance in achieving that. The Respondent was represented by counsel, Mr Richard Ryan. We received written and oral submissions from both parties which were very helpful in summarising their respective cases and, although we may not refer to them all directly here, we considered them carefully when reaching our decision. We were provided with a hearing bundle running to 529 pages, a chronology and a cast list, all of which had been agreed between the parties. Any references to specific pages of the hearing bundle herein will be by way of square brackets, for example [220] or [34- 54]. We made it clear to the parties that, given the size of the bundle, it should not be assumed that we would be aware of, or would take into account, any document to which we were not referred during the course of the hearing.[3]We were also provided with witness statements from 7 witnesses. The Claimant adduced a statement dated 5th November 2025 and the Respondent adduced 6 statements:a. Mr Ben Davenport, hygiene team supervisor (6th November 2025);b. Mr Jason Gregory, production manager (5th November 2025);c. Mr Brian Owens, former operations director (30th June 2025);d. Mr Chris Chisnall, sales and marketing director (5th November 2025);e. Miss Michelle Jackson, former managing director (30th June 2025); andf. Miss Jane Marfleet, head of human resources (5th November 2025). We heard oral evidence from all these witnesses; save for Miss Jackson and Mr Owens, who gave evidence by video link from Australia, all attended in person.[4]Where material facts were in dispute and we were required to make findings, we did so on the balance of probabilities and have set out, to the extent we consider to be required, how we came to those findings. For the avoidance of doubt, we did not find any of the witnesses to have been dishonest or intentionally misleading; we were conscious throughout of the inevitable frailties of human memory and that we were dealing with matters which took place several years ago which we had to examine in some detail in order to deal justly with the case. When deciding which findings of fact we were required to make, we had regard to the list of issues annexed to the case management order of Employment Judge Allen dated 14th October 2024 [75-76], which we used to guide us to our various decisions. Chronology of Relevant Events[5]The Claimant, who identifies as black African, was employed as a technical manager from 17th June 2019 until her summary dismissal for gross misconduct on 11th September 2023 by the Respondent, which employed 157 staff at the material time and sources, manufactures and packages over 400 types of cheese to retailers across the UK and internationally. The Claimant’s role at the Buxton site was considered a senior one and she had full responsibility for the Respondent’s food safety, hygiene compliance and quality control, thereby acting as the manager for the 4 members of the technical team and 7 cleaning operatives.[6]The issues pertinent to the Claimant’s case arise from an incident that culminated in the effective evacuation of staff from one of the Respondent’s buildings at the Buxton site on the morning of Monday 24th July 2023 as a result of reported respiratory problems caused by what was described by those present as a strong bleach-like odour coming from the high-care cleaning room. In summary, the Claimant accepts that she attended the premises on Saturday 22nd July, without notifying anyone of her intention to do so beforehand, and carried out a cleaning procedure on her own; this much was not in dispute between the parties. What was contentious was the subsequent investigation and disciplinary process which resulted in the Claimant’s summary dismissal on grounds of gross misconduct for the manner in which she carried out the cleaning procedure in the circumstances that arose.[7]Jason Gregory was the production manager who oversaw the Innovation Building, the main production facility at the Buxton site, where the vast majority of the Respondent’s operational work is carried out; this is divided into high care (where cheese is cut) and low care (where the cheese is subsequently wrapped and packaged). In his witness statement (which was not challenged to any material extent on this issue), Mr Gregory explained that all employees are made aware of the significant risks posed by bacteria (most prominently listeria) in the food sector, which can contaminate dairy products (including, of course, cheese). In order to prevent contamination, the Respondent’s technical team (which was managed by the Claimant) uses three cleaning products supplied by Kersia UK (formerly known as Holchem), namely Excel, Active and sodium hypochlorite, the last of which is described by Mr Gregory as a “powerful, corrosive chemical with far greater strength than household bleach and must be handled with extreme care” (at paragraph 3 of his statement and referring to the safety data sheet at [232 to 242] and the product information sheet, issued by Holchem, at [243 to 245], both of which we considered carefully during the course of the hearing and our deliberations).[8]Mr Gregory also outlines, at paragraphs 4 and 5 of his statement, how only employees who have specific training in how to use sodium hypochlorite (which includes himself and the Claimant) are permitted to use it because of its hazardous nature. In order to ensure that it is administered safely and at the correct level of water dilution in accordance with the manufacturer’s guidelines, sodium hypochlorite is dispensed via a controlled dilution unit known as a dosing station, located in the high care cleaning room. We heard detailed and undisputed evidence about the dosing station and also considered a number of photographs of it (especially at [136]); the station functions by 25-litre drums of the three types of cleaning solution being positioned underneath the unit and connected by individual pipes which draw it up into the unit, where it is mixed with water to the concentration level at which it is set. The user simply pushes the correct button for the diluted fluid to be dispensed into a bucket to then be used for cleaning.[9]On the morning of 24th July 2023, which was a Monday, at 5:10am, Mr Gregory, who was the team leader that day, received a text message from James Palmerton-Taylor (who had opened up the Innovation Building prior to the start of the morning shift), reporting an unusually strong smell of bleach. Mr Gregory says at paragraphs 8 to 14 of his statement that he arrived approximately 20 minutes later, “immediately noticed a powerful chlorine-like odour” and saw that the floor was “visibly wet and showed signs of discolouration”; over the next hour and a half, the smell intensified and spread and he and other employees experienced respiratory difficulties and burning sensations in their eyes and mouth such that he ultimately ordered that the building be evacuated at 7am. Brian Owens, the operations manager at the time, arrived on site at approximately 7:35am and advised that production should remain paused for at least an hour whilst the situation was investigated; it was 9:30am when employees were first let back into the building to re-commence work but they were subsequently stopped again and the morning shift was cancelled. The Investigation Process[10]As a consequence of these events, Mr Owens immediately began to investigate what had happened. He said at paragraphs 29 to 31 of his witness statement (and this was not challenged during the hearing) that he received a telephone call from the Claimant at approximately 9am; she was not on site as she was on annual leave for the week commencing that day but she told him that she had been informed of the issue by one of her team at 8:09am and, as far as she was concerned, there was no need for a health and safety investigation as she had cleaned the high care cleaning room on the Saturday morning, using sodium hypochlorite on the floor. Mr Gregory says in his statement that this conversation left him “perplexed” because the Claimant was not expected to work at weekends and, although she managed the cleaning team, she was not expected to do any cleaning herself, let alone at the weekend when she was not working. The Claimant told Mr Gregory that she had arrived at approximately noon on Saturday and cleaned the floor of the high care cleaning room, and various connected areas, with sodium hypochlorite, which she had left on the floor over the weekend.[11]A health and safety investigation was commenced that day by Peter Johnson, the Respondent’s health and safety officer, who asked Jane Marfleet (the head of human resources) to check the CCTV footage at the relevant times. Ms Marfleet confirmed that the CCTV showed the Claimant arriving on site at 11:32am and leaving at 1:38pm but, as the Claimant was on holiday that week, Mr Johnson was unable to have a proper conversation with her about what had happened, albeit there was a brief telephone conversation on 24th July which seems to have suffered from a bad connection.[12]Mr Johnson produced an accident investigation report consisting of 22 pages [396-418], which contained 10 statements from 9 witnesses, including the Claimant. This report was received by Mr Owens on 2nd August 2023 and he noted that Mr Johnson had collated evidence suggesting that:a. A drum of sodium hypochlorite had been found on 24th July, empty and unsecured, next to the dosing station; this was out of the ordinary because it had only been replaced very recently and should, if used at the correct concentration, last for about a month;b. Chlorine gas, which is 2.5 times heavier than air, had been released and caused to disperse into the atmosphere once employees arrived to start their shift and were causing the gas to be moved around;c. There was chemical corrosion in both the low care and high care areas of the Innovation Building; andd. The chlorine gas was the likely cause of respiratory symptoms among a number of employees.[13]As a result of this report, Ms Marfleet submitted a statutory report under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) to the Health and Safety Executive (HSE); this was approved by Mr Owens and stated that a large amount of incorrectly diluted sodium hypochlorite had been applied to the floor in an apparent attempt to control listeria [419-420]. The Discplinary Process[14]Given the Claimant’s confirmation that she had carried out the cleaning which appeared to the Respondent to have caused the events in question, Michelle Jackson, the managing director at the time, had appointed Mr Owens on 24th July to oversee a discplinary process. Mr Owens clarified that the Claimant’s most recent relevant training, which had actually been organised by her for her team, had taken place on 2nd February 2023 (6 months previously) and had been given by Kersia, including instructions on the correct and safe use of chemicals including sodium hypochlorite, the required dilution and the risks of exposure to them. He also noted that the Claimant had been in post for approximately 4 years and was herself a senior manager responsible for the use of cleaning chemicals on site.[15]The Claimant returned from annual leave on 1st August 2023 and Mr Owens had an initial meeting with her on 3rd August, during which he asked her to provide a statement outlining her version of events. He told her that his investigation to date had indicated potential negligence on her part which had resulted in 4 employees requiring first aid treatment (and one going to hospital), £3,000 of lost labour and a serious impact on customer service levels, resulting in the need to submit a RIDDOR report as it was a reportable event, which may have consequences for the company as a whole. Mr Gregory said at paragraph 48 of his statement (which was unchallenged during the hearing) that he told the Claimant his primary concerns were “her use of dangerous chemicals in a potentially hazardous and reckless way, and her complete failure to communicate to other members of staff about what she had done (i.e. she had not alerted any of them to the potential danger)”. The Claimant was, at that meeting, suspended on full pay pending the completion of the discplinary process (confirmed in writing by Ms Marfleet on 10th August [426]) and she was asked to leave the site, leaving her laptop and work telephone. The Claimant said that she would take a couple of weeks’ holiday and submitted her statement to Mr Owens on 22nd August, 19 days later [434-5].[16]Mr Owens prepared a disciplinary investigation report, dated 14th August 2023 [428-433], together with 11 appendices, including Mr Johnson’s health and safety investigation report, the Claimant’s training records and the Respondent’s health and safety policy. Mr Owens noted that he would need further information beyond that which had been provided by Mr Johnson in his report in order to understand the proper context of the index incident, most pertinently the Claimant’s training records and her position within the Respondent’s management hierarchy. His findings, summarised on the last page of his report, were as follows From all of the evidence I have considered, as referenced in this Disciplinary Investigation report, I am satisfied that there is a case to answer in respect of the following: 1. Reckless and negligent use of a dangerous chemical in the workplace, leading to minor injury to work colleagues; 2. Reckless and negligent use of a dangerous chemical in the workplace, leading to significant damage to company property; 3. Reckless and negligent use of a dangerous chemical in the workplace, leading to loss of business 4. Failure to warn colleagues of clear and obvious danger 5. Breach of company Health and Safety Policy 6. Breach of statutory regulations[17]In light of his findings, Mr Owens recommended that there be a discplinary hearing because the Claimant’s actions were “clearly” serious, “not only because the health and welfare of people has been placed at risk, but also because of the associated damage to company property and to its immediate productivity”.[18]As noted above, the Claimant’s statement [434-5] was received by Mr Owens on 22nd August, which was 8 days after he completed his investigation report. This statement is highly relevant for the purposes of the instant claim so it is reproduced here in full (with the formatting altered for presentation purposes): I read an email on 21st July 2023 from Steve Hill, the site engineer informing the team that the sink in the cleaning area was going to be removed and a replacement sink would be installed on Saturday 22nd July. I only read the email later in the day as I was on holiday. I then alerted Samantha Chidzomba, the site Quality manager and requested for the area to be deep cleaned including the new sink by Anita. I later received an email from Samantha informing me that the cleaning could not be done because there was no time. I am fully aware that we have the night hygiene team who would have carried out the deep cleaning, however I wanted to ensure that extra focus and attention was given around the sink area as we had a longstanding listeria problem and wanted to ensure that this was contained to minimise the risk of further contamination to other areas. On the day that the sink was scheduled to be installed, I called the site Engineer Steve Hill and the Team manager Jason Gregory to establish what had been arranged regarding the new sink installation but unfortunately, I could not reach either of them. Evidence of call Log available if needed. I then phoned the site and Will from Export customer service answered my call and informed me that there was a white van parked outside the innovation building. I informed Will that I was coming to site and would be there in an hour. I also informed the warehouse team leader Simon Huynh that I was coming to site. I arrived at the site with my work laptop as I intended to update the site listeria management plan. I went into the operation office and asked the Simon to accompany me to the innovation building as I was going to be working alone so I thought it was important for him to know exactly where I was for health and safety reasons. When we arrived in high care, he informed me that he had other things to do, so he returned to the warehouse. I proceeded to fill some buckets with solution of water and sodium hypochlorite through the dosing unit and pour the solution onto the floor. I observed the 15-minute contact time required for the hypochlorite to kill the pathogen. I then proceeded to scrub the floor with a broom. It was clear that the floor was heavily soiled by the milky coloured water formed during cleaning and I was surprised by this considering it had been cleaned by the night hygiene on the previous night. Evidence available if needed. I proceeded to deep clean the cleaning room and all the heavy foot pathway areas only. Whilst waiting for the 15mins contact time to lapse, I conducted some hygiene inspection on the equipment as well as GMP. Evidence available. As I was using the dosing unit, I kept checking that the chemicals were coming through from the drum and noticed some air bubbles. I checked the drum, and it was empty so I decided to leave it in such a way that the team would notice it and realise the need to change the drum. In addition, the chemicals were not locked (Evidence available). Lastly, I scrubbed the area around the new sink, under the chemical storage and left the unit at around 2pm as the site was due to close. On Monday 24th July at 6:24am, I rang Sally Ann to ask the day hygiene to clean the sink and the floor in the cleaning room as I had failed to complete the cleaning on Saturday (Call log evidence available). At 9am on the same day, I checked my email and read one about chemical contamination from Jason and Brian Owens. I immediately rang Brian to make him aware that I was the one who had carried out the cleaning. I also made a comment that I was surprised that there were chemical smell considering it was almost two days since the cleaning had been done. I had previously cleaned the same room using the same chemicals and never experienced any such reaction. I put it across to Brian that it could be because the room had no ventilation. These actions were inadvertent as I clearly would not risk putting myself or others at harm but stemmed from a personal commitment to ensure that the area was sanitised to the best of my ability.[19]Mr Owens noted at paragraph 54 of his statement (and also during his oral evidence) that there were a number of issues raised by the Claimant’s response which caused him concern, including: why she considered going to carry out cleaning in the first instance; why she had continued after not being able to make contact with either Mr Gregory or Mr Hill; why she had not cleaned the sink area when her concern about that appeared to be her reason for cleaning; why she did not notify anyone that she had been surprised to see what she described as a “milky coloured water”; and why she did not simply leave the job to the usual cleaning team.[20]The Claimant was invited to a discplinary hearing on 30th August 2023 by way of a letter from Ms Marfleet dated 23rd August [430-440], which set out the allegations as per Mr Owens’ findings above; this letter also set out the usual procedures in line with the Respondent’s policy, including the Claimant’s right to be accompanied by a colleague or a trade union official at the hearing, and attached a copy of Mr Owens’ report. The letter also pointed out that, “given the gravity of the allegations and the potential outcome, the Company has instructed an independent HR Consultant - Kirsten Brumfitt from Pictal People Limited — to conduct that meeting”. Following objections from the Claimant’s trade union representative regarding the instruction of an external party, the hearing was rescheduled for 6th September, to be chaired by Chris Chisnall, the Respondent’s sales and marketing director (but with Kristen Brumfitt present as a consultant); the minutes of the meeting are at [456-469] and we considered them carefully during the course of our deliberations.[21]The discplinary hearing lasted over 4 hours and the Claimant was assisted by her union representative, Roy Streeter. Of particular note, the Claimant said (at [457]) that “the CCTV I want to see you don’t have” and it was discussed that footage is usually only stored for 28 days and that there is no camera in the cleaning room in any event; the Claimant emphasised that she wanted to see the footage to find out how the contractor who came to fit the sink had entered and left and what he had carried with him, explaining (at [458]) that, in her view, the contractor must have used some substance, perhaps ammonia to unblock the sink, as the sodium hypochlorite “has to have been accompanied by something to have reacted so did he use his own tools in high care?”. Later in the meeting, at [460], the Claimant was read an email from Darren Skidmore, the contractor in question, to Mr Hill, dated 6th September 2023 (and appended as exhibit MM7 to the Claimant’s witness statement), in which he says that no chemicals were used in the installation of the sink unit and that the unit itself was left with the protective film still on it and the floor was only swept. In response to this, the Claimant said “[h]e’s going to say that isn’t he”, commenting that they should be looking at the root cause of the incident, querying where the ammonia has come from in order to cause a reaction with the sodium hypochlorite to produce a gas.[22]When explaining what she did during her visit to site, the Claimant said (at [458]) that she “[w]ent into the cleaning room, went and got a bucket. In hindsight I should have cleaned the sink and gone but the floor was all white and milky and there were tables all around. So, I worked backwards and cleaned tables and sink and all around. I scrubbed as much as I could. The washroom has a slant, so it comes out of the doors into the corridor and the same with the blue room. So, I thought instead of wasting it I would just do it all. I didn't know which way the contractor came in, which entrance and exit he used so I had to guess which he might have come through, so I just cleaned everywhere to make sure sanitised”. When asked why she had decided to come in and do this herself when there is a cleaning team whose job is to do this, the Claimant said that “every time we swab after I clean there is no listeria, when we swob [sic] after the hygiene team clean there is listeria”.[23]The Claimant confirmed that she did not check how full the drum of sodium hypochlorite was but “saw lots of air bubbles so I knew it was empty. That is why I left it in a way that they would see”. She said that used “a lot” of buckets of sodium hypochlorite, which she poured using the dosing unit, and did not use undiluted concentrate straight from the drum as was being suggested. When it was put to her that there were pools of fluid on the floor, the Claimant denied this and said (at [467]) that she “did [her] best” and “removed as much water as [she] could” but also said (at [463]) that, although she did not deliberately leave water on the floor and tried to remove as much as possible, they had the incorrect wet and dry vacuum (as the feet are too big). The Claimant also maintained that there is nothing inappropriate about leaving sodium hypochlorite on the floor as it should effectively evaporate and the only reason that it did not must have been because of faulty air flow as she has done this for 20 years and “without issues and something has caused this reaction” ([469]).[24]By way of a letter dated 11th September 2023 [474-479], Mr Chisnall notified the Claimant of the outcome of the discplinary process and informed her that she was to be dismissed on the grounds of gross misconduct. This is a lengthy document and its contents will not be repeated here in full; however, in summary, Mr Chisnall set out the 6 allegations listed at paragraph 16 above (all of which had been denied by the Claimant), set out his findings of fact on each one with reasons and then explained his decision that dismissal was the appropriate sanction.[25]It is notable that Mr Chisnall dealt with allegation (4) (failure to warn colleagues of clear and obvious danger) first and it is clear that he considered this to be the most serious of the 6. He found this allegation proved on the basis that the Claimant admitted that she had not informed any of her colleagues that she had gone in over the weekend to clean and had left sodium hypochlorite on the floor until she called a colleague at 6:24am on the Monday.[26]Mr Chisnall then dealt with allegations (1), (2) and (3) together as they dealt with the “reckless and negligent use of a dangerous chemical in the workplace” leading to minor injury to work colleagues, significant damage to property and loss of business. He dealt first with the question of whether or not (which the Claimant had denied) she had used neat (as opposed to diluted) sodium hypochlorite, about which he said the following: Much of the hearing focused on a debate about whether the drum of sodium hypochlorite was full when you arrived on site, and therefore whether the floor was flooded with neat or diluted sodium hypochlorite. I have reviewed the witness statements of Jason Gregory and Ben Davenport, both of which state the drum was full. Although the veracity of Charlotte Tulip's statement and subsequent clarifying statement were questioned by you and Roy Streeter your Trade Union representative, I found her statement to support those of Jason and Ben, namely that from the end of June until 20 July the half full drum would have emptied, and therefore would have been replaced. We also have photographs of two empty drums awaiting collection in the Innovations building yard, one of which matches the photograph supplied by Charlotte of the drum in situ during her audit on 28 June. The other drum is the empty drum you refer to as having been left on site after you finished cleaning on 22 July. I have also examined the CCTV footage and images of the floor cleaning conducted out by the Hygiene Night Cleaning team on 21 July and by you on 22 July. There are very clear differences in the volume and consistencies of the fluid being applied, with the liquid on 21 July being more foamy/soapy in appearance and on the 22 July it was more viscous and less foamy, even with your vigorous application observed. It is also clear that the liquid left on the floor by the Hygiene team dried in a much shorter time, and even allowing for more fluid applied by you, the floors were still wet with white foaming and a yellow residue on the Monday morning (over 40 hours later). During the meeting you were very clear to state on several occasions that you had previously left sodium hypochlorite on the floor without any issues or effects to individuals or property. This you stated was common and you had done throughout your 20 year career in the food production industry. You stated that the chemical reacted in a way you'd never seen before, you assumed it was due to the floor being dirty, such that you scrubbed harder. You did not however stop to investigate if there were other factors or causes for this, nor did you rinse the floor to prevent any continued reaction. Given you didn't know the reason or cause of this reaction, it should have followed that you wouldn't know how this would continue to react once you had left. And as you left you didn't leave any notice or warning, as referred to above. We cannot find any evidence in support of the introduction of any acidic compounds or liquids, and unfortunately the CCTV footage of the area from the time the Hygiene team left on 21 July until your arrival is unavailable. We have investigated whether any other individuals, namely the contractor fitting the sink in the High Care Cleaning Room, used any chemicals, and we have a statement confirming that he did not. We also know that no other individuals were admitted to site from you leaving site until the first shift commencing at the Innovation building on the morning of Monday 24 July. Given all of the above, it is my reasonable belief that you did in fact use neat or incorrectly diluted sodium hypochlorite to clean the area.[27]The Claimant had maintained throughout that she had used sodium hypochlorite solution from the dosing unit as required and had not simply poured solution straight from the drum of concentrate. However, the next section of the dismissal letter is particularly relevant: Notwithstanding this, your experience of using sodium hypochlorite and the reaction of the chemical should have been cause for concern, prompting you to desist and immediately look to rinse the floor in order to prevent the ongoing reaction whilst you investigated the cause - you did not. You continued to use the chemical, whether diluted or neat, despite not knowing of any environmental factors causing the unusual reaction, or how the chemical would continue to react, putting your health at risk, but that of those that followed you into the affected areas too. I therefore find that you did use a dangerous chemical in a reckless and negligent manner.[28]Mr Chisnall then moved on to address each of the consequential aspects, i.e. minor injury to colleagues, significant damage to property and loss of business. He commented that, based on the evidence of several employees who were on site to start their shift on the Monday morning, it is “without question that several of the Production team suffered ongoing ill health effects from the inhalation of the chlorine gas, with watery and sore eyes needing on site first aid, shortness of breath/tightness of the chest, headaches and lethargy being reported. One member of the team had to seek medical attention from an urgent care facility due to the affect [sic] on her breathing”.[29]In respect of the damage to property, Mr Chisnall found this allegation proved on the following basis: The sink in the High Care Cleaning Room had been installed that very day, Saturday 22 July, and in fact you noted it still had the protective wrappings present. It is therefore reasonable to assume that the sink was brand new and without defect. In her witness statement contained in document E2 (Health & Safety Investigation of Peter Johnson) Heather Power references rust damage being visible not only on the sink but on other pieces of stainless steel equipment, tables, etc. This is attributed to the corrosive effects of the chlorine gas. Whilst this corrosion has been removed on a cosmetic level, this is likely to return in the longer term and will need to be replaced. Although I don't have an estimate for the cost of replacing these assets, it will be thousands of pounds. Additionally, the hygiene and non-slip coating of the floors in the High Care Cleaning Room, corridor and Green, Blue and White room is significantly damaged. The floors appear to have had a resin coating removed through the application of the sodium hypochlorite. The cost of replacing the floor will likely cost over an estimated £30,000 and will also disrupt production. I therefore find that you did use a dangerous chemical in a reckless and negligent manner leading to significant damage to company property.[30]Turning to the loss of business allegation, Mr Chisnall found this proved on the basis that production had to be halted due to the effects of the chlorine gas, as well as ongoing minor disruption throughout the week due to the health effects on the team; this, he said, led to a reduction of over 40% in production which, in turn, led to delays in deliveries.[31]Mr Chisnall then found allegation (5) (breach of company health and safety policy) proved because the Claimant admitted attending site alone, admitted not wearing goggles and gloves and admitted leaving the drums on the dilution station unchained, with the cap of the sodium hypochlorite drum unscrewed, in order to prompt colleagues to replace it. Mr Chisnall emphasised that, as the technical manager, the Claimant had overall management responsibility for all of these issues.[32]In respect of allegation (6) (breach of statutory regulations), Mr Chisnall found that, although her intentions were “honourable and for the good of the business”, the Claimant “caused a major incident affecting the health of our employees and environment” and, although the HSE investigation remained ongoing, the fact that she had caused the incident meant that the Claimant had breached statutory regulations.[33]Having found all the allegations against the Claimant proved, Mr Chisnall went on to consider the sanction. He said this: Based upon the above findings and the seriousness of the matter, I regret to advise you that the outcome of this disciplinary hearing is your dismissal on the grounds of gross misconduct. Your behaviour was reckless in handling this hazardous chemical, and notwithstanding the dispute over the chemical being diluted or applied neat, you admitted it reacted in a way you had never seen and you still continued with your cleaning and did not desist and rinse away the chemical this to prevent further unknown reactions. Further you made no attempt to warn colleagues of the hazard, potential or otherwise, caused by the reaction. Such a dismissal is summary, which means it is with immediate effect and without notice pay.[34]The letter then set out the Claimant’s right to appeal. The Appeal Process[35]The Claimant lodged an appeal document which ran to some 16 pages [482-498], in which she reiterated her denial of all the allegations. The contents will not be repeated here in full but her summary and conclusions encapsulate much of what she said so are set out here: Summary I cannot be penalised for taking a proactive approach to rectify a challenge in a system that was failing because personnel were not taking instructions and undermining my authority. The HACCP System was being undermined. We were understaffed and this was affecting operations and implementation of the HACCP system. For example, although I was on holiday, I requested that the cleaning room be deep cleaned before a new sink was installed to avoid cross contamination. It was not done because they said there was no time. There was also no plan put in place either on what was to be done by whom and when after being notified by email by the site engineer that the sink was to be replaced on the 22nd of July. I was concerned. I was on holiday. (The site has a new procedure in place which Sam and Steve Hill were aware of This included the cleaning and swabbing of the new sink prior to going into high care, The cleaning and swabbing of the sink after installation. Completion of the maintaince sheet and static equipment movement sheet Non of this was completed) Failure to manage listeria was a major cause of concern. The HACCP Team leader to manage listeria and my boss Brian Owens having communicated that it should be given special urgent attention to prove we were in control. I will further show that there was failure of the system at multiple levels including human resources, complacency and failure to take food/staff safety seriously. There was failure to adhere to company procedures at multiple levels and those responsible were not investigated as I was singled out, which raises many questions. The focus has been on minor injury, loss of time and damage to equipment without a full investigation of what caused what and neither is food safety raised as an issue of great concern. We owe it to our clients to ensure that the products we release to the market are safe for human consumption. Listeria mono is a pathogen and is a major concern in the food industry. It is therefore important to ensure that all products released to the market are produced in a safe environment where good manufacturing practices is observed. Worker safety and food safety procedures should therefore not be selectively applied. I did not act in a malicious way and neither did I do anything to intentionally harm my workmates. The methodology used to collect data during the investigations is flowed and no independent party was invited to oversee the process to ensure that the process was objective. Crucial CCTV is missing, and data collected has been tempered with to support a premeditated outcome. It is not true that I did not alert my workmates of my presence on site. I reported on arrival and on departure from the facility. Crucial CCTV footage of activity in the passages and of movement of barrels of chemicals from the storeroom is missing. Most disturbing is the fact that Charlote and Sarah never worked at the company at the same period during an audit hence could not have communicated regards the chemical labelling. The barrel could not have been in use for over a year. ……….. Conclusion Hypochlorite diluted or not does not produce chlorine gas otherwise it would do the same in the drum and explode or damage the drum. Hypochlorite reacts with an acid to produce Chlorine gas the contaminant alluded to. The source of the acid is not adequately addressed to give a clear picture of what transpired. Where did the acid come from? This question was not adequately addressed during the investigation. The investigation is flawed and so is the outcome. The dirt swept by the contractor is not described too. Could this have reacted with the hypoclorite to produce chlorine gas. My investigation has revealed that if there were plastic granuals or pieces these could slowly react with hyppclorite to produce chlorine gas. Plastic does react with hypochlorite. It is corrosive. It does not eat up the plastic in one go but slowly releasing chlorine gas in the process. Secondly if hypochlorite comes into contact with an acid it also produces chlorine gas. The investigation failed to answer these crucial questions. Where did the acid come from? Did the dirt by the contractor include plastic granuals or material? Hypochlorite on its own could not have produced chlorine gas.[36]It is also notable that, at paragraph 1 of the main body of the document [484], the Claimant asserts that “[g]ross misconduct must be proven beyond doubt”.[37]An appeal meeting invitation dated 3rd October 2023 [499-501] was sent to the Claimant by Michelle Jackson, offering various dates for the Claimant to select. Ms Jackson says in the letter that, given the relatively small size of the company, she is considered, as the managing director, to be the most appropriate person to conduct the appeal; although, she says, the Claimant is aware of her relationship with Brian Owens (their being a couple), “I am satisfied that such connection does not and will not impinge on my judgement in terms of the appeal process, not least because Brian only oversaw the initial investigation and report, that Chris Chisnall chaired the disciplinary meeting and that the disciplinary pack itself was pulled together with additional evidence collated by Kirsten Brumfitt”.[38]Ms Jackson then goes on to say that it is unclear from the appeal document what the Claimant’s grounds of appeal are; as such, she has considered it carefully and has set out what she believes the grounds to be, disregarding allegations of previous health and safety beaches by the company and comments about what people did after the relevant incident had been discovered: 1. Breaches of Company procedures by others in terms of audits and cleaning processes have not been considered 2. The investigation was not balanced or otherwise conducted fairly 3. Evidence relied on to reach the disciplinary decision has been altered 4. The finding that the Sodium Hypochlorite container was full on Friday evening was not reached reasonably 5. The finding that sodium hypochlorite can produce chlorine gas in the absence of an acid is flawed, such that you, Mercy Matewa, cannot be held responsible for the appearance of gas, which instead must have been produced through the actions of another person 6. The conclusion that you, Mercy Matewa, breached Company health and safety protocols is unwarranted 7.The conclusion that you, Mercy Matewa, were responsible for the chemical incident is unreasonable[39]The meeting, the letter says, will consider these grounds and review the conclusion reached in the original disciplinary meeting and the Claimant is reminded of her right to be accompanied by a fellow worker or trade union official.[40]The appeal meeting took place on 23rd October 2023 (the meeting notes being at [508-514]) and the Claimant was assisted again by Mr Streeter, her trade union representative. Ms Jackson emphasised that “the fact you disagree with the decision or are just unhappy with it, is not of itself grounds for appeal” and then went through the 7 grounds set out in the invitation letter (at paragraph 38 above), to which the Claimant simply responded “yes”. Each of the grounds of appeal was discussed and the Claimant was given the opportunity to explain her position.[41]The appeal outcome letter dated 6th November 2023 [515-522] concludes that the Claimant’s appeal should be dismissed in full. Ms Jackson comments that, in her view, there was a thorough investigation of a serious matter and Mr Chisnall was “perfectly entitled to reach the conclusions he did, based on what are demonstrably detailed investigations and findings” and to decide to dismiss the Claimant summarily. Again, the details will not be set out in full here but the letter deals with each of the 7 grounds of appeal in turn (noting that there was no objection to them as the basis of the appeal at any stage), setting out the Claimant’s arguments during the hearing and then Ms Jackson’s findings on each ground. Ms Jackson considered some of the grounds to lack relevance, such as the company’s record on health and safety, and she pointed out that the Claimant herself was responsible for health and safety in the context of cleaning processes in any event.
The Applicable Law
[42]The law to be applied by the Tribunal in this case was not controversial and was reflected in the list of issues at [75-6]. The relevant parts of the Employment Rights Act 1996 (the ERA) and the Equality Act 2010 (the EqA) which applied in this matter are set out below. There is, of course, a large body of binding authority that informs a proper understanding of how these provisions are to be applied in any given case but, given that there was no controversy between the parties in this respect, it is not proposed to set out those authorities here in detail; nonetheless, we were confident that the list of issues was an appropriate route to the correct application of these principles. Unfair Dismissal[43]Section 94 of the ERA confers on the Claimant 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 she was dismissed by the Respondent under Section 95 but the Respondent does not dispute that the Claimant was dismissed within the framework of section 95(1)(a) of the ERA.[44]Section 98 of the ERA deals with the fairness of dismissals. There are two stages within Section 98. First, the Respondent must show that it had a potentially fair reason for the dismissal within Section 98(2). Second, if the Respondent shows that it did have a potentially fair reason, 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. In this case it is not in dispute that the Respondent dismissed the Claimant because it believed she was guilty of misconduct. Misconduct is a potentially fair reason for dismissal under Section 98(2). The Respondent has therefore satisfied the requirements of Section 98(2). For the reasons set out further below, it is relevant to emphasise here that it is the conduct and not the consequences of such conduct which is the focus of Section 98 and the overall statutory framework for unfair dismissal.[45]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 Respondent, shall depend on whether in the circumstances (including the size and administrative resources of the Respondent’s undertaking) the Respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the Claimant; and this shall be determined in accordance with equity and the substantial merits of the case.[46]In misconduct dismissals, there is well-established guidance for the Tribunal on fairness pursuant to Section 98(4) in the decisions in British Home Stores Ltd v Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827. The Tribunal must decide whether the Respondent had a genuine belief in the Claimant’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the Claimant acted reasonably or unreasonably pursuant to Section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. We reminded ourselves that it is immaterial how this Tribunal would have handled the events or what decision it would have made, and that the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23 and London Ambulance Service NHS Trust v Small 2009 IRLR 563). Direct Race Discrimination[47]Section 4 of the EqA lists protected characteristics for the purposes of that Act and race is one of them, being defined further by Section 9.[48]Section 13(1) of the EqA provides that: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[49]This means that the Claimant would have suffered from direct discrimination if we find that she was treated less favourably because of her race.[50]The Claimant must establish that she was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be “different” (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 HL). The person(s) with whom the comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (Section 23(1) of the EqA). The comparator should, other than in respect of the protected characteristic, “be a comparator in the same position in all material respects as the victim” (Shannon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL). There is no requirement for a comparator to be identical but, the greater the differences, the less likely it might be that the difference in treatment was because of discrimination and so more is likely to be required to shift the burden of proof (Virgin Active Ltd v Hughes [2023] EAT 130).[51]If there is no such comparator in reality, then the Tribunal should define and consider how a hypothetical comparator would have been treated if in the same position as the Claimant save for the fact that they would not have the protected characteristic relied upon (Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646, CA).[52]The phrase ‘because of’ is a key element of a direct discrimination claim. In Gould v St John’s Downshire Hill [2021] ICR 1 EAT, Mr Justice Linden said, in respect of determining ‘because of’: It has therefore been coined the ‘reason why’ question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. It need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.[53]Under Section 136(2) of the EqA, the Claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that discrimination has occurred before any other explanation is taken into account. If the Claimant succeeds with this, then it is for the Respondent to show that the contravention has not occurred (Section 136(3)). The Tribunal must first consider whether the burden does shift to the Respondent. The Claimant must show more than simply that there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc [2007] IRLR 246). The operative point is whether the Tribunal could conclude there had actually been discrimination, not simply that there might have been (Hammonds LLP v Mwitta [2010] 0026/10).[54]Section 136 clearly sets out a two stage test but the Tribunal is cautioned against applying that test in a way which is too mechanistic. This is important to ensure that discrimination is not incorrectly imputed into circumstances where the case is simply about unreasonable treatment for other reasons, or unfortunate circumstances (Chief Constable of Kent Constabulary v Bowler [2016] EAT 0214/16). There is a manifest difference between unreasonable treatment of a claimant and unlawful discrimination (Bahl v The Law Society [2004] EWCA Civ 1070).[55]Once the burden has shifted, if it does, the Respondent must show that the treatment was “in no sense whatsoever” due to the protected characteristic (Igen Ltd v Wong [2005] IRLR 258). In weighing up whether or not there has been discrimination, the Tribunal should consider all of the evidence from all sides to form an overall picture. Causation, or the “why” the conduct was committed, is a subjective conclusion of law rather than objective conclusion of fact: what is the reason for the conduct and is that reason discriminatory (Chief Constable of West Yorkshire Police v Kahn [2001] UKHL 48). It is almost always the case that the Tribunal needs to discover what was in the mind of the alleged discriminator (The Law Society v Bahl [2003] IRLR 640). Discussion and Findings on the List of Issues[56]With the applicable law in mind, we focussed on the questions posed by the list of issues. In her helpful written submissions at the conclusion of the hearing, the Claimant set out her position on the various points, focussing largely on her criticisms of the disciplinary process and why, she argued, they rendered the process unfair such that her claims should succeed. These points were, equally helpfully, grouped together and summarised by Mr Ryan in his written submissions on behalf of the Respondent.[57]We reminded ourselves throughout our deliberations that we were not tasked with deciding as a fact whether or not the Claimant had committed gross misconduct and should then have been dismissed but, rather, with deciding whether these decisions were open to the Respondent as being within the band of reasonable responses. In considering this question, we kept in mind that we must not expect perfection from an employer, only reasonableness in all the circumstances. We therefore considered each of the Claimant’s relevant criticisms in turn; we formed the view that we were not obliged to consider in detail the criticisms which we did not consider had any material impact on the fairness of the decision, such as the use of the word “flood” rather than “soak” in various documents describing the cleaning process. Lack of Expert Scientific Evidence[58]The Claimant approached this issue from various angles in her written submissions, variously calling it “technical and scientific deficiencies”, “lack of technical competence” as admitted by Mr Owens and “basic scientific errors” regarding sodium hypochlorite chemistry. She also referred to reliance on an unverified Holchem conversation. At its core, this complaint, to which the Claimant returned, often unprompted, many times during her oral evidence, arises from a specific section of Peter Johnson’s investigation report [415] which notes a conversation he had with Chris Johnson (the chemical account manager at Kersia, who supplied the sodium hypochlorite) on 26th July 2023. Given its prominence in the Claimant’s arguments, this note is reproduced in full:• Spoke with Chris Johnson (Chemical Account manager at Kersia) 26/7/23 13:24 Jason G was present and conversation was on loudspeaker, PJ explained what had happened. Chris advised we had suffered a chlorine gas incident where the Hypo [sodium hypochlorite] has reacted with an acidic compound and gassed off. He advised we need to understand the circumstances around who and why the hypo had been applied in such a way to cause the incident. Chris explained we should be diluting the Hypo to 1% strength which equates to 10mg/I therefore lx 25 litre drum of our hypochlorite solution supplied @20% strength should last for 2500 litres of water (2.5 tonnes) 2.5m3• Sink installation took place — Removal of the sink on Friday, new sink fitted Saturday 22nd (See supporting)• It was understood Mercy Matewa visited site and applied Sodium Hypochlorite to the floors in Innovation on Saturday 22nd July.• Hypo drum replacement — A New Drum of 25 litre Holchem Sodium Hypochlorite was fitted by Jason Gregory to the dosing station, located in the wash room on Thursday 20th July. This was left with the cap fully tightened and chained up.• On the morning of the incident The Drum of Sodium Hypochlorite located in the washroom was found unchained with the cap unscrewed and the drum empty.(see supporting)• The Liberation of chlorine gas is a result of Hypochlorite mixing with acidic compounds, (possibly acidic Cheese fats) may have caused a reaction, an acidic reaction with Hypo gives off chlorine gas which is 2.5 times heavier than air. Increased foot traffic and opening / closing doors potentially disturbed the low lying Chlorine gas stirring it up into the air. It was noted on several statements that the smell of chlorine got considerably stronger as people started to walk into the factory at the start of shift. Exposure to Chlorine gas symptoms were noted very quickly and corresponded to the build up of movement of people in the building.• It was recorded that a residue of thick yellow liquid that was 'foaming' was scraped up by James Palmerton Taylor previous to starting work on the morning of the incident.• It was recorded by John Power that white foam was apparent and seen to be bubbling on the floor in the washroom area on the morning of the incident.• The factory floors were still wet and in some areas puddles of liquid on the morning of the incident indicating the chemical was still present at the start of the shift.• Corrosion spots start to appear throughout the factory (both low and high care) on stainless steel throughout the factory potentially caused by corrosive chlorine in the air.(see supporting)• Safe Working Exposure limits would appear to have exceeded 0.5ppm for 15mins 1.5ppm TWA 8 hours[59]The Respondent’s argument, as put by Mr Ryan, was effectively that there is no basis upon which to require the Respondent to go further than speaking to Kersia’s chemical account manager and taking that as one aspect of the evidence, which must be taken in its totality when considering if the Respondent has acted reasonably in reaching the findings that they did. The nub of the Claimant’s case appeared to be that she denied a chemical reaction had taken place which gave rise to the emission of chlorine gas and that the investigation had failed to establish this as the result of her cleaning. We found there to be a significant difficulty for the Claimant in this situation, where her own job is, effectively, intertwined with her expertise in, and knowledge of, chemicals (an expertise which we did not doubt) but where we could not simply accept her assertions about the scientific errors made by the Respondent at face value because she is a party to the litigation and not an independent expert for these purposes.[60]The Claimant emphasised in her oral evidence and in her written submissions that sodium hypochlorite does not release chlorine gas unless mixed with an acid (or certain amine-based products), which appears to be agreed by the opinion of Chris Johnson from Kersia. At paragraph 39 of her written submissions, the Claimant says: “Throughout these proceedings the Respondent never identified or admitted any acid source as relevant to the chemical reaction to the sodium hypochlorite, never tested for acid, and never examined whether an acid could have been present on site”. We considered this point very carefully and concluded that the Claimant’s argument stretches the bounds of reasonableness too far. We found that the Respondent did not have to establish a definitive cause (as Mr Ryan put in in his submissions) of the suspected chlorine gas outbreak because this would elevate the standard of proof to something far higher than it actually is, which is perhaps foreshadowed by the Claimant’s bare assertion in her grounds of appeal, which we do not accept as a matter of law, that “[g]ross misconduct must be proven beyond doubt” [484].[61]It is of course incumbent on the Respondent to carry out a reasonable investigation and this, in our view, was achieved on this point by speaking to Chris Johnson and seeking his views; in reaching this conclusion, we considered the totality of the evidence put before Chris Chisnall, which included: the Claimant’s admission that she had seen a white milky substance which she had never seen before whilst cleaning the floors; the Claimant’s strongly-held view that there is no difficulty with leaving sodium hypochlorite on the floor over the weekend when the product information sheet [243] specifically refers to a contact time of 15 to 20 minutes; and the symptoms experienced by employees when they came to work on the Monday morning. It is right to say that the Respondent did not identify an acidic compound which they could specify as the culprit that reacted with the sodium hypochlorite but it did not seem to be challenged by the Claimant that cheese produces acidic compounds and this incident did indeed occur in the premises of a cheese supplier. We agreed with Mr Ryan’s argument that the right question in law is not whether the Respondent could have obtained further expert evidence but, rather, is whether the failure to do so is so unreasonable that it was outside the band of reasonable responses; put this way, it is easier to analyse the situation and we were unable to agree that either the investigation process, or Mr Chisnall’s finding of fact that a chlorine gas outbreak had occurred, was unreasonable by dint of this purported omission.[62]This issue was very much intertwined with the Claimant’s insistence that other avenues were not investigated sufficiently, the main one being whether or not the contractor who fitted the sink, Mr Skidmore, had used any acidic compounds. There was, as noted above, an email from him confirming that he did not and that he would have had no reason to do so; the Claimant seemed unable to respond to this in any cogent manner save as to argue, almost in as many words, that “he would say that wouldn’t he”. The Claimant also seemed to focus on which cleaning product Mr Gregory used after the chlorine gas leak had been suspected (as he appeared unable to recall which in crossexamination) but we found this to be irrelevant given that it occurred after the fact. These issues perhaps serve to illustrate the Claimant’s desire to try and point to other possible explanations for what happened but, at the same time, perhaps also overstate the evidential threshold that the Respondent could reasonably be expected to apply. Incorrect Findings on the Empty Drum and Use of Undiluted Sodium Hypochlorite[63]The Claimant maintained throughout the discplinary process and at the hearing before us that she used the dosing unit and did not pour neat sodium hypochlorite solution on the floor; and said that she had left the empty drum (unchained and with the lid unscrewed) simply to remind colleagues to replace it. Mr Chisnall found that she did use concentrated solution and one of the main reasons for this finding seems to be that there was an empty drum of that concentrated solution which they would not have expected to have been used so quickly had it been diluted appropriately. We reminded ourselves that we were not making our own findings on this point but were considering whether or not the Respondent could reasonably have made the finding that it did. There was conflicting evidence before Mr Chisnall and, whilst he did not explicitly say that he had balanced the witness evidence about when the drum was replaced with the Claimant’s account, it was clear that he was attempting to do so by the way he reasoned his finding in the dismissal letter; given the evidence before him, we were unable to say that making this finding was unreasonable simply because we may have assessed it in a different way and come to a different conclusion.[64]In any event, as alluded to above, we considered the whole question of whether or not undiluted solution was used to be far less important than the Claimant seemed to believe, albeit that this is clearly a genuine and strongly-held belief on her part. This is because the conduct in which the Claimant was found by Mr Chisnall to have engaged was the very fact that she went into work on a Saturday, without telling anyone in advance or afterwards, to clean with sodium hypochlorite (which she confirms she considered it was safe to leave on the floor over the weekend). In the dismissal letter [476], as reproduced above, Mr Chisnall made the specific point that, notwithstanding his finding that the Claimant had used undiluted solution, the reaction that she herself saw should have been a concern but she simply carried on and told nobody about it. As Mr Chisnall put it, the Claimant “continued to use the chemical, whether diluted or neat, despite not knowing of any environmental factors causing the unusual reaction, or how the chemical would continue to react, putting [her] health at risk, but that of those that followed [her] into the affected areas too”. As such, even if we had found it to be unreasonable for Mr Chisnall to have found that undiluted solution had been used, we did not consider it to have played a material role in the decision to dismiss and, therefore, would not have rendered the process unfair in any event. Lack of Relevant CCTV[65]We heard clear evidence from the Claimant that she believed that relevant CCTV footage had been either tampered with or withheld from her but we found there to be no evidential basis for this assertion. Given that the Claimant had in fact admitted much of the factual matrix in any event, we found that she was simply dissatisfied with her inability to try and deflect blame onto others (such as the contractor) or, alternatively, to try and identify errors in tangential issues, such as when Mr Huynh turned on a light switch in the corridor. We found this to be a wholly misplaced concern and did not consider there to have been any impact on the investigation or the decision to dismiss, especially when the Claimant’s actions largely took place in an area not covered by the CCTV at all and there was footage which did indicate what she was doing in areas covered by the CCTV. Lack of Injury to Other Employees[66]The Claimant made it clear in both her statement and her oral evidence, and then re-iterated the point in her written submissions, that she did not believe that any of her colleagues had become unwell on the Monday morning when they entered the Respondent’s premises and did not accept that there was sufficient evidence to prove this. We found this position to be rather baffling in the context of multiple witness statements from those colleagues describing symptoms such as sore eyes and respiratory problems and given that the Claimant did not actually attend the scene herself at all as she was on annual leave at the time. Not only did we reject any assertion that finding such injuries to have been caused was unreasonable, but we also considered that it illustrated some sort of blind spot in the Claimant’s analysis of the whole situation when, without any apparent evidential basis, she simply refused to accept that these injuries happened. It is not for us to explain why but we did consider that it may be partly caused by the fact that the presence of such injuries was a very strong factor in suggesting that a chemical reaction had taken place and that she had no option other than to simply refuse to accept that it had indeed happened. Lack of Evidence of Damage to Floors and Equipment[67]One of the findings made by Mr Chisnall was that there was damage caused to various pieces of equipment, and to the floors, as a result of the reaction caused by the Claimant’s used of sodium hypochlorite. Again, we reminded ourselves that we were not making this finding ourselves but were analysing the reasonableness of the findings made. It was right for the Claimant to point out that evidence of a scraper appearing to be corroded was unhelpful as it was unclear where in the factory it had been situated; however, there was more cogent evidence, such as apparent corrosion of the newly-fitted sink unit in the vicinity of where the Claimant was cleaning, which we found was sufficient to justify such a finding. We also considered that this evidence should be seen as supportive of, and supported by, the finding that a reaction had actually taken place, which was of course denied by the Claimant throughout.[68]Returning to the list of issues in respect of the unfair dismissal claim, it was clear to us that the Claimant’s dismissal was wholly attributable to her conduct, namely the act of carrying out the cleaning in the manner which she did without informing anyone before or afterwards; for these purposes, conduct does not include the consequences which Mr Chisnall found to have flowed from the conduct. We found that the criticism levelled by the Claimant against the investigation and dismissal process were not justified and that the Respondent acted reasonably, held a genuine belief that she had been guilty of misconduct and acted within the band of reasonableness in making the findings they did. The appeal process allowed the Claimant to have the matter reconsidered and we found that this was done fairly with a view to establishing whether or not the decision to dismiss was reached in a fair and reasonable manner.[69]The decision to dismiss was undoubtedly a harsh one but that does not make it unfair. As noted above, it was reached notwithstanding the Claimant’s denial that she used concentrated cleaning solution and on the basis that her actions, on her own account, were such that she used dangerous chemicals in a reckless manner, potentially putting colleagues at risk, when she was a senior manager who was herself responsible for the management and use of the very chemicals she was using in a manner which she was unable to justify objectively. As such, having considered the evidence before us in its totality, we found that the claim for unfair dismissal must fail.[70]The claim for direct race discrimination was, in our view, bound to fail on the basis that the Claimant was unable to identify any detail in respect of the alleged comparators she cited when arguing that they had committed similar offences to her but were treated more favourably. In short, having heard the evidence, we were not in any position to find that the actual comparators were in the same material circumstances as the Claimant when it came to investigation or sanction. As such, the Claimant had to rely instead on a hypothetical comparator, which would be someone who had, in effect, acted in the same manner as she did, and was subject to the same discplinary process and the same evidence, but was not black African. Given the circumstances, we found it palpably clear that a non-black African employee in the same position as the Claimant would not have been treated any more favourably than her because there was a serious incident that required investigation and, as set out above, we found that the decision to dismiss was within the band of reasonable responses. For the avoidance of doubt, even if the Claimant could have established that she was treated less favourably in a manner which could be the result of race discrimination such that the first limb of the test is satisfied, we were in no doubt that the Respondent had demonstrated that the Claimant was investigated and dismissed for non-discriminatory reasons.[71]The claim for direct race discrimination must therefore fail.
Conclusion
[72]We had no doubt that the Claimant believed, and may well continue to believe, that she has been treated unfairly and in a discriminatory manner by the Respondent. However, such a belief is insufficient in itself and we did not consider that an objective analysis of the evidence before us could lead to either of the claims succeeding. They are, therefore, both dismissed.