Mr J Quinn v Alderhey Children’s NHS Foundation Trust: 2401560/2021

EMPLOYMENT TRIBUNALS

Case No 2401560/2021

Between

Mr J QuinnClaimant

Alderhey Children’s NHS Foundation TrustRespondent

Before

Employment Judge Buzzard

In person for claimant

Mr Williams (instructed by Solicitor) for respondent

Date 20 May 2024

JUDGMENT

The judgment of the Tribunal is that the claimant is not found to have been a disabled person as of the date of the alleged discriminatory acts and accordingly the claimant’s claims of discrimination based upon the characteristic of disability are dismissed.

REASONS

[1]The issue to be determined at this hearing was whether the claimant had the protected characteristic of disability at dates of the alleged acts of disability discrimination relied on in his claim.

[2]At the outset of the hearing the claimant confirmed that the alleged acts of disability discrimination occurred in early April 2017. Accordingly, the issue at this hearing was whether the claimant met the definition of a disabled person in early April 2017.

The Relevant Law

[3]The definition of disability under the Equality Act 2010 has several requirements. These are:a. The claimant must have an impairment; and

b. That impairment must have at least one substantial adverse impact on the claimant’s ability to carry out day to day activities; and

c. That impact must have lasted, or be expected to last, for 12 months at the date of the alleged discrimination. This is the requirement that the condition is long term.

[4]There are other elements to the definition of disability, such as in relation to terminal and progressive conditions, which are not relevant to this claimant.

[5]It is important to note that the definition of disability does not permit the use of hindsight. The question is not whether an impairment has turned out to be long term, but whether it was long term as at the date of the alleged acts of discrimination.

[6]The Equality Act 2010, at schedule 1 (2)(1)(b) states: “2(1) The effect of an impairment is long term if – (b) It is likely to last for at least 12 months…”

[7]There are numerous authorities that make it clear that “likely to last”, should be read as meaning it could well happen that it lasts. It is not an assessment of whether on the balance of probabilities it is more likely to last than not to last.

[8]Also of relevance to this hearing, under Schedule 1, paragraph 2(2), it is stated that: “If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

[9]Finally, to amount to a disability the condition has to have a substantial adverse effect on the claimant’s ability to carry out at least one normal daily activity. Normal daily activities would generally include things like being able to cook a meal, get dressed, go to the shops, basic personal hygiene, etc. The Burden of Proof

[10]The question of whether a claimant meets the definition of disability is commonly a question of fact determined from evidence. In considering that evidence, it is important to note where the burden of proof lies.

[11]The claimant is asserting that he has the protected characteristic of being disabled. The claimant is therefore required to establish that he is disabled. The burden falls on him.

[12]The standard of proof is on the balance of probabilities. To be able to discharge this burden the claimant is required to produce evidence upon which the Tribunal can make a finding that he is disabled.

[13]The claimant, in his oral submissions, suggested that the statutory guidance relevant to the question of disability status implies that when an individual is taking medication that must mean that any effects of the impairment for which the medication is being taken are substantial. That is not what the guidance states or suggests. The claimant had misread the guidance. The guidance makes it clear that where a person is taking medication the effect that the impairment would have without that medication should be deduced. It is not automatically the case that those effects will therefore be substantial. They may or they may not be. The Evidence at this Hearing

[14]The only oral evidence at this hearing was from the claimant. The claimant had prepared a written witness statement in advance of this hearing and was cross examined in detail by the respondent’s representative.

[15]In addition to the oral evidence the parties produced an extensive bundle of documents. Only a small part of that bundle was relevant and referred to at this hearing. Those parts of the bundle of particular relevance to the issue at this hearing were the claimant’s medical and GP records, occupational health reports and referrals and a number of other contemporaneous documents including emails

[16]Both parties made oral submissions. The Claimant’s Evidence

[17]In his oral evidence the claimant made clear and repeated assertions that he was dealing with intrusive suicidal thoughts from August 2105 to beyond April 2017 on a daily basis. The claimant described these thoughts in vivid terms, stating that their impact on him was severe and repeatedly confirming that they had occurred every day.

[18]A significant part of the cross examination of the claimant focused on these assertions. The claimant in his submissions, and to some extent in his responses under cross examination, appeared to suggest that the respondent’s representative was placing too much emphasis on these intrusive suicidal thoughts, and was doing so to seek to imply that the absence of such thoughts would preclude the claimant from having a mental health disability.

[19]The respondent’s representative was clear that this was not what was being suggested. If it were true that the claimant on a daily basis was having to cope with significant and intrusive suicidal thoughts, that would be very likely to be enough to persuade a Tribunal that he was disabled. The respondent’s position, however, is that the claimant in his statement and oral evidence was substantially exaggerating the effects of his mental health difficulties in an attempt to persuade the Tribunal that they amounted to a disability. The purpose of the respondent’s representative’s focus on the claimant’s evidence about daily suicidal thoughts was primarily to support the respondent’s contention that the claimant was not giving an honest or accurate account of his mental health at the relevant time.

[20]As noted, the claimant in his oral evidence was clear. He was having to cope on a daily basis with significant intrusive suicidal thoughts from August 2015 to April 2017.

[21]The claimant’s disability impact statement does not appear to be consistent with that account. In his impact statement the claimant states, referring to the period after 1 April 2017, which is after the relevant time for these claims, that he was “again feeling suicidal” and that he was “returning to feeling the same way I was in late 2015”. This clearly describes changes over time. Taken as read the claimant would have to have ceased feeling suicidal if he was “again feeling suicidal” after 1 April 2017. It is difficult to reconcile this with the claimant’s responses during cross examination that from August 2015 to beyond 1 April 2017 he was coping with intrusive suicidal thoughts on a daily basis.

[22]In relation to the same issue, the claimant during cross examination was taken at length through his GP records. These show that the claimant saw his GP on numerous occasions in the period leading up to 1 April 2017 regarding a variety of health issues many of which were not related in any way to his mental health. In this period there is on no record made by the claimant’s GP that he was having suicidal thoughts. The records appear, in fact, to contradict this. In October 2016 the claimant’s GP records that the claimant was “not feeling low” and that the claimant was “sleeping well”. In earlier 2016 the claimant appears to have had a series of GP consultations titled ‘Stress at Work (Review)’. In these consultations, the claimant is not recorded as having referred to suicidal thoughts. The claimant’s GP records the claimant at a review in April 2016 as having “mood swings”, and then later at a consultation in May 2016 as “patient feeling better”.

[23]The first reference to suicidal thoughts which the claimant was able to identify in his GP records appears in the records of a consultation on 14 December 2018. The claimant’s GP at that time records “had fleeting thoughts of overdosing but no plans or real intention.” This is more than 18 months after the relevant time, and is still not close to the daily and intrusive suicidal thoughts which the claimant described in his oral evidence at this hearing.

[24]Shortly after the relevant date, on 13 June 2017, the claimant returned to his GP. The GP entries from that consultation record the claimant describe an incident which had occurred at work. The claimant confirmed at this hearing that he had been informed shortly before his GP appointment that action was going to be taken against him in relation to an earlier incident. There is no reference to suicidal thoughts in the records of this consultation.

[25]The claimant was also taken through his occupational health records during his cross examination. These record the following examples of entries that are not consistent with the claimant’s responses in oral evidence about daily and intrusive suicidal thoughts: May 2016 “Sleep improving” and “Mood ” 18 July 2016 “Sleeping well”, “No DSH thoughts” and “Mood OK” 19 July 2016 “I understand that James mentioned to a manager in 2015 he had had some fleeting suicidal thoughts. I can confirm that James does not have any such thoughts at present.”

[26]These comments come from within notes of meetings with Occupational health, and the subsequent reports. The notes are clearly reflective of a full discussion of the claimant’s issues at work and his mental health. Despite this, these notes do not suggest in any way that the claimant was dealing with intrusive suicidal thoughts on a daily basis, or anything close to such a problem.

[27]The claimant attended an occupational health referral on 16 June 2017. This was shortly after the relevant time for his claims. The records of that referral state “… was feeling good before incident and was going to come off medication but seen GP and not now”. The claimant had seen his GP on 13 June 2017.

[28]On 16 June 2017 the claimant’s occupational health records state that he was “undertaking all normal activities but no pleasure”. On 29 August 2017 the claimant’s occupational health records record him as “undertaking all normal activities”

[29]The claimant was also taken to an exchange of emails with his employer from April 2017. The claimant’s manager, a Mr Weston, summarised a discussion which he had had with the claimant in an email of 20 April 2017, referring to a discussion on 16 February 2017. The summary records that the claimant had sent something referred to as a ‘statement of fact’ to Mr Weston in advance of their 16 February 2017 discussion. This document was not in evidence, but relevant parts of it were set out in Mr Weston’s email as follows: “I have had two long term periods of illness in the last 3 years, the second phase was caused by allegations of bullying made against me by two managers and strained my mental health to the point that I had suicidal thoughts…”

[30]Mr Weston then goes on to summarise what the claimant said about this at their meeting on 16 February 2017 as follows: “you stated that you had not experienced any suicidal thoughts whatsoever since August 2015..”

[31]When put to the claimant that it was not possible to understand this as being consistent with his oral evidence at this hearing, the claimant stated that he had lied to Mr Weston in their meeting.

[32]The above is not intended to recite all relevant entries and evidence that the claimant was referred to. It stands as examples of the entries and evidence the claimant was referred to. The overall picture is clearly demonstrated by these examples. It is simply not possible to find a way to interpret the claimant’s oral evidence at this hearing such that it is consistent with any contemporaneous records or documents. At various times the claimant suggested that doctors had failed to record that he told them he was dealing with daily suicidal thoughts, that he had hidden such thoughts from them and others, and that he had told lies at times about his health, including at medical appointments specifically to discuss his mental health and stress.

[33]Taking all this into account, the claimant’s evidence at this hearing regarding his mental health up to and around early April 2017 does not appear to be reliable or credible. He has consistently and repeatedly added to and/or exaggerated his problems at that time. A generous interpretation of this lack of reliability or credibility may be that the claimant, who does appear to have significant mental health problems now, is struggling to accurately recall the state of his health from back in early 2017, noting it is now in 2023, six years later. A less generous interpretation would be that the claimant is simply seeking to mislead the Tribunal in order to bolster his assertions that he was disabled in April 2017 to enable him to pursue his claim.

[34]Regardless of which of these explanations apply, the finding of this Tribunal is that the claimant’s oral evidence at this hearing regarding his health in April 2017 cannot be relied on. Accordingly, the decision regarding whether the claimant was a disabled person in April 2017 has been based on the extensive medical records and other documents produced at this hearing.

[35]In that relevant period running up to and around April of 2017 it is clear the claimant visited his GP a significant number of times. There are multiple occupational health referrals and, as mentioned, there are contemporaneous emails recording what the claimant told his employer. The Tribunal has considered these carefully and does not find that they come close to establishing that the claimant was a disabled person with anxiety or depression or with any other condition up to and including early April 2017. There is no reference to depression in the relevant periods at all. There is ample reference to stress but, firstly, that is not the disability which the claimant relies upon and, secondly, stress can cause a disability but is not itself a disability. It is an external factor. Findings Based on Documentary Evidence

[36]The medical records and documents do not show that the claimant was suffering from substantial adverse effects on his ability to perform day to day activities up to April 2017. He clearly had mood swings and was struggling with stress, but shortly after that date he is recorded as undertaking all normal activities.

[37]Importantly, this was after an event which caused him to visit his GP and which had stopped his plans to cease taking medication. This suggests that prior to the event in question his health and ability to carry out normal daily activities was in fact better than it is recorded as being in June and July 2017 by occupational health.

[38]It is correct that throughout the relevant period the claimant was on a low dose of a drug called Citalopram. The claimant’s position in submissions appeared to be that he must have been disabled and/or must have been diagnosed with depression to be given that drug, because it is a drug the claimant says is only given to persons who have depression.

[39]The claimant did not produce any authority to support this assertion that Citalopram is only given to persons with depression, or to persons who are disabled. It is not possible for this Tribunal to extrapolate any such conclusion from the mere prescription of Citalopram.

[40]It is noted that the claimant’s own position is that he was initially on a very low dose of Citalopram. This was doubled prior to the relevant time, but was doubled again after the event which caused the claimant to return to his GP in June 2017.

[41]The medical records, from around the time that that prescription appears to have begun, only refer to issues of stress and low mood. They do not refer to depression, and they do not describe symptoms which appear to amount to a substantial impact on the claimant’s ability to carry out normal daily activities.

[42]There was a paucity of evidence regarding the effect of the Citalopram on the claimant’s mental health. It is necessary to consider what impacts the claimant’s mental health would have had on him without the medication when assessing whether he was disabled. It is noted that the claimant told occupational health, in a consultation shortly after April 2017, that he had been intending to come off his medication, to ask his GP to stop the prescription. It was only because of the events that occurred after April 2017 that he changed this intent. This very strongly suggests that until the events that caused him to change this intention, the claimant’s own view was that he did not need to continue to take Citalopram. This is not definitive but is evidence of the claimant’s own assessment from around April 2017, the relevant time for these proceedings, that he no longer needed to take Citalopram.

Conclusions

[43]The medical and documentary evidence does not support a finding that the claimant was a disabled person at the relevant time. The claimant’s evidence is found to be unreliable and inaccurate.

[44]Accordingly, the finding is that the claimant has not satisfied the burden of showing that he was a disabled person by way of anxiety and depression, or indeed anything else, as of April 2017.

[45]The effect of that is that any claim of discrimination relying upon the characteristic of disability around that time must fail and is dismissed.

Conclusions

[1]It has taken longer to provide these reasons than I had hoped. The reason for the delay was my involvement in a long hearing and my decision to prioritise that hearing over outstanding requests for reasons. I apologise to the parties for keeping them waiting.

Introduction

[2]This is a sad case. The respondent runs one of the country’s leading children’s hospitals. The claimant worked there as a receptionist. He has devoted most of his working life to helping children receive care through the National Health Service. On 24 April 2017, the claimant debated politics with a parent in the Outpatients reception area, causing some unease amongst parents and children, and was defiant when challenged by a manager. He was taking anti-depressant medication at the time, and his working arrangements had recently been changed against his wishes. A human resources manager, faced with overlapping and contrasting versions of how the conversation had gone, thought that an appropriate 1 of 22 management intervention could be a reminder of the appropriateness of the setting for the conversation. The respondent instead chose a disciplinary investigation. The claimant’s response was to use the incident reporting system to complain about the disciplinary investigation, naming people involved, something he had been instructed not to do. That led to the existence and detail of the disciplinary investigation being circulated more widely than it should have been. Whilst on sick leave, he returned on occasions to the reception area and did the kind of work that was part of his role. He had been told that if he returned to work, he would have to work somewhere else because there was a live disciplinary investigation. At the conclusion of a 3-year disciplinary process, he was dismissed. One of the reasons given to him was that he had committed gross misconduct by his behaviour in the initial conversation. He was also found to have committed gross misconduct his submission of the incident report, and by working in the reception area in defiance of the instruction not to do so. These two further incidents of alleged gross misconduct could never have happened if the first incident had been dealt with informally: there would have been no disciplinary investigation for him to report inappropriately, and there would have been no restrictions on his ability to work in outpatients reception. So it was that the respondent lost a receptionist of 32 years’ experience and the claimant lost his job.

[3]An avoidable dismissal is not necessarily unfair. More specifically, a dismissal for conduct is not unfair merely because there were forks in the road where the employer could have prevented the employee from misconducting himself. I have to consider the issues in the case and apply the law to the facts to resolve those issues.

Issues

[4]It is common ground that the claimant was dismissed and that he had the right not to be unfairly dismissed.

[5]The reason for the claimant’s dismissal was the belief held by Mr Stark and Mrs Brown that the claimant had: 5.1. Behaved aggressively and unprofessionally on 24 April 2017 5.2. Breached confidentiality by submitting Ulysses reports 5.3. Failed to comply with reasonable management instructions by attending work in certain areas and 5.4. Submitted a further inappropriate Ulysses report in breach of an instruction.

[6]This was a reason that related to the claimant’s conduct.

[7]The claimant did not at any time suggest that he had been dismissed for any other reason.

[8]The issue in the case was: Did the respondent act reasonably or unreasonably in treating that reason as sufficient to dismiss the claimant?

[9]All the circumstances must be taken into account, but the claimant’s written closing submissions have very helpfully identified 6 themes that allegedly made the dismissal decision unreasonable. This is where I have trained my spotlight. I have also borne in mind criticisms advanced in the claim form. 2 of 22

[10]Further issues would have arisen if I had found the dismissal to have been unfair.

Evidence

[11]The respondent called Mr Stark and Mrs Brown as witnesses. The claimant gave oral evidence on his own behalf. All three witnesses confirmed the truth of their statements and answered questions.

[12]The claimant faced many questions whose relevance stated to be to his “credibility” and his “attitude to these proceedings”. I did not find it necessary to reach conclusions on either of these things. Mr Dawes’s submissions did not rely on any assertion of fact made by the claimant either in his witness statement or in his oral evidence. It is rarely proportionate to have to decide the reliability of evidence on which a party does not rely. Had it been necessary to determine issues of contributory fault, or the quantum chance of dismissal following a hypothetical fair process, I would have needed to form some view of whether I could rely on the claimant’s evidence, although the most of the facts of greatest relevance to those questions were largely undisputed.

Facts

[13]About 36 years ago, the claimant started employment in the NHS. By 2017, he had been employed by the respondent for many years as a receptionist. He was a trade union representative.

[14]In March 2013 the respondent updated its disciplinary policy. C was consulted over its terms.

[15]Under the heading, “Formal Investigations”, paragraph 2.3 provided, 15.1.1. “Confidentiality must be respected at all times. Confidential information may be provided to those involved as part fo theinvestigative process. Those interviewed should be informed that a breach of the trust’s principles on confidentiality could be a disciplinary offence. Details of the investigation should be restricted to those who are directly involved and who are essential to gathering relevant information.”

[16]Paragraph 5.5(ii) provided, 16.1.1. “Certain types of offence are sufficiently serious to warrant dismissal without previous warnings. These fall into the category of “gross misconduct” and are listed in [an appendix].

[17]At Appendix D, paragraph 1.3, the Policy defined gross misconduct as “behaviour of such a nature that the Trust is justified in no longer tolerating the continued employment of the individual…in determining whether an offence constitutes gross misconduct, managers are required to make a judgment taking into consideration the serious of the misconduct and any mitigating factors”.

[18]Paragraph 1.6 contained a non-exhaustive list of examples of gross misconduct. These included, at paragraph (g), “violent or offensive behaviour, including verbal abuse, threatening or aggressive behaviour, (h) “breach of confidentiality” (m) “conduct at work…that brings the Trust into serious disrepute” and (t) “repeated refusal to undertake a reasonable instruction;” 3 of 22

[19]On 16 February 2017, the claimant met with Mr Will Weston, Associate Chief Operating Officer, to discuss some photographs that the claimant had taken in a patient area. There is a dispute about precisely what was discussed. It does not matter who is right or who is wrong about that. Following the meeting, Mr Weston e-mailed the claimant on 20 April 2017. His e-mail gave an account of the meeting from Mr Weston’s point of view.

[20]Part of the e-mail related the claimant’s mental health history, as allegedly discussed during the meeting. It referred to some episodes of concern, but reported the claimant saying that no such episode had occurred since 2015. According to the e-mail, the claimant had said that his medication was not affecting his ability to do his job. It asked the claimant to inform his manager if that summary of his health was incorrect or not up-to-date. The claimant replied, but did not seek to correct Mr Weston’s health summary.

[21]In his e-mail, Mr Weston expressed concerns about the potential consequences of taking photographs of patients, and warned that similar behaviour would result in disciplinary action.

[22]The e-mail made a recommendation that the claimant complete information governance training.

[23]Four days later, in the afternoon of 24 April 2017, the claimant was behind the reception desk in an outpatients waiting area. The desk was designed for receptionists to work whilst seated. About 3-4 groups of child patients and their parents were waiting for their appointments. A father (Parent 3) began a conversation with the claimant. The parties do not agree about all the details of what happened next. For now, I set out the facts that have never been in dispute: 23.1. One of the other parents in the waiting area happened to be the respondent’s Information Governance Manager (Parent/Manager 1). Another parent (Parent 2) worked for another NHS organisation and happened to be there with her child. Two of the claimant’s colleagues in the reception area, Aggie Darroch and Janice Tomlinson were also there, as was Sue Carter, another of the respondent’s employees. 23.2. The conversation between the claimant and Parent 3 moved onto politics. They expressed opposing political views. The claimant was behind the reception desk, with Parent 3 on the other side. 23.3. Parent/Manager 1 intervened in the conversation, saying that it was inappropriate. The claimant defended their right to have the conversation. He told Parent/Manager 1 that he was a trade union representative and asked her, rhetorically, whether he had freedom of speech. Parent 3, who, up to this point had been disagreeing with the claimant, found common cause with him on their right to have the conversation in the first place. He, too, told Parent/Manager 1 that they had a right to freedom of speech. 23.4. Parent 2 then intervened. She said that there was a time and a place to be having such conversations. 4 of 22 23.5. Shortly afterwards, Parent 3 and his child were called into their appointment. The claimant and Parent 3 shook hands.

[24]Shortly afterwards, Parent 2 sent an e-mail to the respondent’s Patient Advice and Liaison Service (PALS). She was one of approximately 1,500 people to escalate a patient concern through PALS that year. Typically, PALS was used to raise issues about patient care and, most commonly, delay.

[25]Parent 2’s PALS notification: 25.1. described the voices of the claimant and Parent 3 as being “quite loud, not in an aggressive manner”; 25.2. stated that she (Parent 2) had been “shocked” by the claimant’s lack of professionalism; 25.3. stated that she had told the claimant and Parent 3 that “the volume of their voices could be intimidating for some of the children”; 25.4. described her 12-year old child as being relieved when Parent 3 was called in for his appointment; and 25.5. added, “If this was my first visit I know I would not have much good to say about [the respondent’s] frontline staff!”

[26]On 25 April 2017, the PALS e-mail was forwarded for investigation.

[27]Parent/Manager 1 independently put forward her version of the conversation. She did so by e-mail on 25 April 2017. Her e-mail: 27.1. described individuals in the waiting area looking “a little uncomfortable”; 27.2. described the claimant as “stood up behind the counter shrugging his shoulders” and talking “in a fairly aggressive manner”; 27.3. stated that she had said that the conversation “could become heated” and that she had wanted to “nip it in the bud”.

[28]Parent 3 became involved separately. He gave his telephone number, which was passed to Mr Weston on 25 April 2017. Two e-mails followed from Parent 3, both on 27 April 2017. In summary, Parent 3: 28.1. Stated that their conversation had been “very pleasant”. 28.2. Recounted that he and the claimant had then been “very rudely interrupted” by Parent/Manager 1, whom he described as “an ill educated lady”, and he had responded by asking her “to mind her own business”. 28.3. Described her comments as “silly” and “daft” and expressed the view that Parent/Manager 1 “couldn’t string a sentence together without moaning about life”. 28.4. Warned that, if the matter was not resolved in the claimant’s favour, he would make an “official complaint for bullying” by Parent/Manager 1.

[29]Over the next few days, Parent 3 e-mailed to check progress. His e-mails continued to refer to Parent/Manager 1 as a “bully”.

[30]At some point during the days immediately following the incident, the claimant prepared his own version of what happened. (He told us it was about 1 May 2017, but other evidence suggests it had been before 28 April 2017.) In his statement, 5 of 22 the claimant said that his conversation with Parent 3 had been constructive, and that Parent/Manager 1 had approached him in an aggressive manner.

[31]Ms Mandy Burns, Records Manager, e-mailed Sharon Owens (Human Resources) on 28 April 2017, giving an overview of the 4 versions that had come in so far. On that basis, she suggested that an appropriate response would be “maybe a reminder about appropriateness of settings for some conversations?”

[32]In the meantime, the claimant continued to work in his role without incident. Having been recommended for information governance training by Mr Weston, he completed the training on 10 May 2017. The training stressed the need for confidentiality of patient information, and the potential consequences of data breaches, but did not specifically mention the Ulysses system.

[33]By 16 May 2017, Ms Burns had changed her mind about the management response to the 24 April incident. She and Ms Owen had had their attention drawn (somehow) to Mr Weston’s 20 April e-mail with its warning of disciplinary action. It swayed their judgement. They recommended a full disciplinary investigation, to which Mr Weston agreed.

[34]On 25 May 2017, Mr Weston wrote to the claimant to inform him that the Parent 3 conversation would be formally investigated. The appointed investigator was Mr Neil Morris, Deputy Financial Controller. MR Weston concluded his letter with a warning: “To ensure the investigation can be conducted as fairly as possible we request that you keep the matter confidential. Any breach of confidentialiy may be considered to be a disciplinary matter”.

[35]The claimant received this e-mail on 7 June 2017. He was aghast.

[36]Later that day, the claimant raised a formal Dignity at Work complaint, alleging that Parent/Manager 1 had bullied him. (Mr Stark was later to acknowledge at one of the claimant’s dismissal appeal hearings that he had been unaware of this complaint.)

[37]At 8.40am on 8 June 2017, the claimant logged onto the respondent’s Ulysses system. What he did next was later to become Allegation 2.

[38]The way in which Ulysses operated has not been universally understood by those who were later involved in the later disciplinary process, but some features were always well known to all concerned: 38.1. The purpose of the Ulysses system was to report clinical and non-clinical incidents of concern. 38.2. Information uploaded onto Ulysses would automatically generate a report. 38.3. The Ulysses report would be automatically circulated by e-mail (although it was not consistently understood exactly who would be the recipients of those e-mails.)

[39]At all relevant times there has also been a shared understanding about how the system worked. Everyone knew: 39.1. A colleague who wanted to raise a concern logged into the Ulysses system and were taken to a page on the screen. 6 of 22 39.2. The page contained fields for describing the incident of concern. 39.3. Those fields were immediately below a blue ribbon in which the following warning was displayed in white capitals: “PLEASE DO NOT INCLUDE PERSON IDENTIFIABLE INFORMATION IN THIS SECTION”. 39.4. One of the fields was for a free-text description of the incident. The freetext field was immediately below a warning in red font, “Do not mention names as this information is reported externally and needs to be anonymous”.

[40]Having logged onto Ulysses on 8 June, the claimant entered the following information into the free-text field: 40.1. his version of the Parent 3 conversation on 24 April; 40.2. the name of Parent/Manager 1; 40.3. an accusation that Parent/Manager 1’s behaviour was “threatening” and “unprofessional”; and 40.4. this sentence: “On Tuesday 7 June I returned home from work to find a letter from the trust from Will Weston, informing me that I am under disciplinary investigation for having a conversation with a patients parent”; and 40.5. that this was starting to have an adverse effect on his health, and that he was not sleeping or eating properly.

[41]Almost immediately, the claimant received a telephone call from a manager, informing him that his Ulysses report had breached confidentiality.

[42]Later that morning, the claimant went home, having been observed to be upset. He went on sick leave and, apart from a brief spell in 2018, never returned to his role.

[43]On 12 June 2017, the claimant e-mailed Ms Owen, denying that he had breached any confidence in the Ulysses form. His position, expressed in that e-mail, was that the only confidential information in the e-mail was his own.

[44]Mr Morris began his investigation into the Parent 3 conversation. He received human resources support as he went along, but did not undergo any formal training before he started.

[45]Mr Morris interviewed Parent/Manager 1 on 21 June 2017. Her account was broadly consistent with her 25 April 2017 e-mail. She added a note to the record, stating that the claimant had spoken more loudly than Parent 3 and children in the waiting room seemed uneasy.

[46]Mr Morris interviewed Aggie Darroch on 21 June 2017. Ms Darroch was accompanied by Sue Carter.

[47]Aggie Darroch said: 47.1. the conversation included raised voices, but “I wouldn’t say it was that heated”; 47.2. Parent 3 seemed laid back during the conversation 47.3. She had felt uncomfortable and that the situation could have escalated.

[48]Sue Carter (who was only there as Ms Darroch’s companion) added that the voices were raised and “the exchange looked quite aggressive”. 7 of 22

[49]Janice Tomlinson was interviewed on 28 June 2017. She said that she “felt fine” at the time and “didn’t really see a problem with the conversation they were having”.

[50]On 4 August 2017, the claimant was interviewed by Mr Morris. After the interview a typed record was sent to the claimant. According to the record: 50.1. The claimant was asked about the Parent 3 conversation. He stated that he thought he had raised his arms during the conversation, but that he had been relaxed. He confirmed the version of the conversation that I have set out in paragraph 23 as being undisputed. 50.2. The claimant was also asked about the Ulysses report. He stated, “I felt I had to report the incident on Ulysses, to protect myself. I did not breach trust policy and was not aware that I had done so in naming staff … on the incident report.” He suggested that he had completed the form incorrectly due to “failure of adequate training”.

[51]The claimant made a number of annotations to the minutes. He did not seek to correct the part of the interview where he had said he thought he had raised his arms.

[52]By 16 August 2017, the claimant felt well enough to return to work. Privately, managers expressed concern about the prospect of the claimant being back in his role. Ms Marshall e-mailed Mr Andrew Williams to suggest two options: suspending the claimant or a return to work on restricted duties. Mr Williams expressed a preference for restricted duties.

[53]A telephone conversation took place on 18 August 2017 between Michell Hargreaves (Project Manager) and the claimant. The relevant parts of the conversation have never been in dispute. Ms Hargreaves informed the claimant that his return to work would be on amended duties. The claimant immediately voiced his dissatisfaction. He said he would not return to work on amended duties and would go back to his general practitioner.

[54]On 21 August 2017, the claimant’s trade union representative, Ms Angela Blundell, e-mailed Ms Marshall asking for “a more detailed rationale for telling [the claimant] he will return from sick leave to alternative duties and who made that decision”.

[55]Ms Marshall replied on 23 August 2017. She wrote: “The terms of reference provides the scope for the investigation. As we discussed on Monday, during the investigation, serious concerns have been raised regarding [the Parent 3 conversation] which resulted in our discussions to ensure that any associated risk was minimised pending outcome of investigation and to also ensure no conflict took place with the investigation. Consequently, we considered options for [the claimant] returning to work on amended duties/location.”

[56]Mr Morris produced his report in September 2017. He set out the versions of the Parent 3 conversation that had been given by the three parents, the claimant, and the three colleagues. It expressed a view that there was a case to answer for what then became known as Allegation 1. The report did not refer to the fact that the claimant had made a dignity at work complaint accusing Parent 1 of bullying.

[57]The report also found a case to be answered in respect of the Ulysses report of 8 June. This formed the basis of Allegation 2. 8 of 22

[58]The claimant’s bullying complaint of 7 June 2017 was investigated. At a meeting on 14 September 2017, he was informed that the complaint was not upheld.

[59]By letter dated 18 September 2017, the claimant was invited to a disciplinary meeting to consider Allegations 1 and 2.

[60]The manager appointed to conduct the disciplinary meeting was Mr Lachlan Stark, the respondent’s Associate Chief Operating Officer.

[61]The disciplinary meeting was scheduled for 27 September 2017, but it was postponed because of the claimant’s ill health.

[62]On 7 February 2018, the claimant was notified that there would be a further disciplinary investigation. This time, the investigation was into behaviour that ultimately formed the basis of Allegation 3. It was established in that investigation that, on numerous occasions, the claimant had attended work and logged onto the computer system. On 5 of those occasions, he had logged on in the reception area. These spanned 3 dates: 27 November 2017, 12 December 2017 and 26 January 2018. On 27 November 2017, the claimant had spoken to Janice Tomlinson, one of the witnesses to the Allegation 1 investigation.

[63]By that time, the investigation report into Allegation 1 had been completed, but the disciplinary process was still ongoing. There was no reason for thinking that the Allegation 1 witnesses would be re-interviewed by Mr Morris, but it was not yet known whether they would have to answer questions at the disciplinary meeting. That was a real possibility. The disciplinary procedure gave the opportunity to both management and the accused employee to call witnesses.

[64]Janice Tomlinson confirmed to Mr Morris that the claimant had chatted to her and made a cup of tea.

[65]The claimant was re-interviewed by Mr Morris. During the interview, he said that he had obtained permission to visit whilst on sick leave from Cheryl Brindley. He said that he had notified another colleague of each visit in advance. He also said that he knew that he could not work in reception even if it there was a workstation available there.

[66]On 23 March 2018, a second Ulysses report was submitted at the claimant’s instigation. This time, the actual submission was not made by the claimant himself, but by Mr Mike Travis, a trade union official, on his behalf. The report referred to the continuing disciplinary investigation and the effect it was having on the claimant’s health. In the report, the claiant complained about the restrictions on his return to work, including the requirement for him to work in “isolation” in a different location. His visits to reception were explained by “the stress and depression I was suffering”. He also stated that he had been “greatly stressed” at the time of submitting his first Ulysses report (Allegation 2). This time, Parent/Manager 1 was not mentioned by name.

[67]When the second Ulysses report was discovered, it was separately investigated, this time by Ms Angela McDonald. It became the subject of disciplinary Allegation 4. The claimant was interviewed on 19 July 2018. He confirmed he had provided Mr Travis with the information to put into the Ulysses report. The purpose, he said, was to obtain benefits contingent on the claimant being injured at work. He confirmed that he knew about the red banner on the Ulysses system, but his understanding was that all it prohibited was the inclusion of people’s names. In an 9 of 22 investigation report dated “July 2018”, Ms McDonald expressed her opinion that the claimant had a case to answer on this allegation, too.

[68]Mr Travis submitted a statement of case in relation to this second Ulysses report. The thrust of the statement of case was that the management response was an act of “victimisation” on the ground of the claimant’s trade union status. Mr Travis objected to the prohibition on including “identifying information” in the Ulysses report on the ground that it would inhibit proper reporting. He argued that “…there are no names cited, and there was nothing confidential other than that relating to [the claimant]”. The statement of case was accompanied by examples of other Ulysses reports submitted by colleagues in which identifying information had been included, but no disciplinary action had been taken.

[69]On 12 April 2018, the claimant submitted a further grievance. The grievance was about Ms Marshall’s decision-making that affected his “wellbeing”. A grievance meeting was scheduled for 15 May 2018, but was postponed. The reason for the postponement was that – very sadly – the claimant’s mother died. The meeting was rearranged three times but did not proceed. The claimant’s representative subsequently confirmed on 11 September 2019 that, whilst the claimant wished to proceed with the grievance, he wanted to concentrate his efforts on the disciplinary process. The grievance was therefore held in abeyance.

[70]A disciplinary hearing took place on 8 August 2018. Mr Stark and the claimant did not know it then, but this meeting was to become the first of five. Ms Blundell represented the claimant.

[71]Mr Morris did not attend the meeting. Another manager, Tina Bogle, attended instead. Unknown to the claimant, Mr Morris had told Human Resources that he was too unwell to continue. It had been agreed with Mr Morris that, to accommodate his health, he would not be required to attend the disciplinary meeting.

[72]The claimant and Ms Blundell were unhappy with the substitution. They voiced their objection. They wanted to ask questions of the person who had conducted the investigation into each of the allegations. They suspected that Mr Morris had not been adequately trained and wanted to ask him about that, too.

[73]Mr Stark decided to go ahead. He knew the reason why Mr Morris was not there. He knew that the claimant did not know. He did not tell the claimant the reason. He kept the information to himself in order to protect Mr Morris’ privacy.

[74]The meeting proceeded without Mr Morris. Ms Blundell asked Ms Bogle detailed questions about the investigation into Allegation 1 (the Parent 3 conversation). Ms Bogle answered as best she could, but often was unable to answer.

[75]Parent 3 joined the meeting. He was there as a witness to Allegation 1. He described the conversation he had had with the claimant at reception. His version was broadly consistent with the account he had given by e-mail. He added that he was partly deaf, “so I may speak loud”.

[76]After Parent 3 had left, the claimant answered questions about his version of the Allegation 1 conversation. He accepted that he had been standing up whilst talking to Parent 3. He was asked, “In a children’s environment, [do] you think a conversation about politics was appropriate?” 10 of 22 To which the claimant replied, “Yes until someone tells me it is not.”

[77]The claimant asked, rhetorically, “In future how do we engage with partly deaf people?”

[78]The first disciplinary meeting ran out of time before they could have a detailed discussion of Allegation 2. They therefore reconvened for a second disciplinary meeting. This took place on 14 August 2018. The claimant confirmed that he had completed his Information Governance training. Ms Blundell added that some boxes were ticked when the training had not in fact been completed. He told Mr Stark that he had had no sleep prior to submitting the Ulysses report. Mr Travis was called as a witness. He identified examples of colleagues’ breaches of confidentiality where no action had been taken.

[79]Prior to the second disciplinary meeting, the claimant provided Mr Stark with some extracts of the Information Governance training. The training materials included a summary of the remit of Information Governance. Amongst the areas included in Information Governance were, “Confidentiality – A duty of confidentiality exists where information is shared where there is an expectation it will be held in confidence, ie Patient to Health Professional”.

[80]The materials also included the quiz that the claimant had completed as part of his training. Question 4 of the quiz read, “What duty do you have if you see a name you recognise on one of our patient calls screens?” To this question, the claimant had answered, “Confidentiality”.

[81]By letter dated 6 September 2018, the claimant was invited to a reconvened (third) disciplinary hearing. That hearing was postponed. This was because the claimant was too unwell to attend. There was then a protracted period during which the claimant remained on sick leave and the respondent obtained occupational health reports and conducted a stress risk assessment. The claimant raised a grievance about the way in which his absence and return to work had been managed.

[82]The claimant raised a further grievance on 28 May 2019 about the respondent’s alleged “failure to act on occupational health advice”. Mrs Sharon Owen, Deputy Director of Human Resources, acknowledged his grievance. After an exchange of emails aimed at clarifying the grievance, she decided to consider it at the conclusion of the disciplinary process.

[83]On 30 May 2019, the claimant e-mailed the respondent’s Chief Executive. He complained about the “actions of HR” in failing to address his grievances, and “effectively creating a bullying culture within the organisation”. He stated, “My mental health is suffering because of the actions and attitudes of HR”.

[84]This e-mail prompted a decision to put the disciplinary process on hold. Ms Shepherd wrote to the claimant on 26 June 2019 to inform him that she had, “decided to commission an independent review of the management of the disciplinary process from 24 April 2017 to date”.

[85]The review was conducted by Ms Jackie Green. It took a further 5 months for her to investigate and deliver her report. In short summary, Ms Green concluded: 11 of 22 85.1. that Mr Morris was experienced in carrying out investigations, albeit not formally trained; 85.2. it was appropriate to continue the disciplinary process with Tina Bogle presenting the management case; 85.3. that the claimant had not been told he could return to work in his existing job (an issue at the heart of Allegation 3); and 85.4. that the claimant’s complaints about the handling of his return to work were unfounded.

[86]By letter dated 16 March 2020, Mr Stark invited the claimant to a reconvened (third) disciplinary meeting. Because of problems related to the Covid-19 pandemic, this meeting did not take place until 1 July 2020. There was insufficient time to conclude the meeting, so they reconvened for a fourth meeting on 8 July 2020 and a fifth meeting on 29 July 2020. The claimant was accompanied at these meetings by Ms Lumberg of UNISON.

[87]During the third disciplinary meeting, the claimant described Parent 3 as having “challenged” him.

[88]In the fifth disciplinary meeting, the claimant accepted that he may have spoken louder than normal to Parent 3. When asked about Allegation 3, the claimant accepted that he had worked in reception twice “to help patients”.

[89]Following the disciplinary meetings, Mr Stark set about reaching his decision.

[90]Mr Stark took a restrictive view of the disciplinary policy. He believed that an employee with no prior warnings could not be dismissed unless that employee had(a) been accused of a specific allegation of gross misconduct as defined in the policy,

(b) been found to have done the thing of which he was specifically accused, and

(c) been found to have committed gross misconduct within the literal wording of that allegation. He did not think the policy allowed him to consider the cumulative effect of behaviour unless at least one instance of that behaviour satisfied the specific definition of gross misconduct of which he had been accused.

[91]Mr Stark decided that on Allegation 1, the claimant had committed gross misconduct, in the form of “violent or offensive behaviour, including verbal abuse, threatening or aggressive behaviour”; and/or Conduct at work…that brings the Trust into serious disrepute”

[92]In short: 92.1. Mr Stark believed that the claimant had raised his voice, based on the claimant and Parent 3 saying that Parent 3 was partially deaf; 92.2. Mr Stark believed that the claimant had stood up and raised his arms, based on what the claimant had told him, and also based on his observations of the claimant’s manner during the disciplinary meetings; 92.3. Mr Stark believed that the conversation was challenging and confrontational, and not relaxed, based on the claimant having told him that Parent 3 had “challenged” him; 12 of 22 92.4. Mr Stark believed that the topic of conversation was “adult-orientated” and inappropriate for a children’s setting; 92.5. Mr Stark did not think that the claimant had shown any remorse; 92.6. Mr Stark rejected the claimant’s mitigation on the ground of his health. He understood the claimant’s point to be that Mr Weston was to blame for not adequately supporting him. He did not think that the claimant was in poor health at the time of the Parent 3 conversation. This was based on his belief that the claimant had told Mr Weston that his medication was not affecting his ability to do his job.

[93]Mr Stark did not think that the claimant had behaved violently. He did not think that the claimant had uttered any verbal abuse. He did not think that the claimant had threatened anyone. The finding of gross misconduct was based on Mr Stark’s belief that the claimant’s behaviour was aggressive, or had brought the respondent into serious disrepute.

[94]Gross misconduct was also Mr Stark’s conclusion in relation to Allegation 2. He considered that the claimant had committed a “breach of confidentiality”.

[95]Mr Stark did not believe that any external person would see the claimant’s actual Ulysses report. As Mr Stark saw it, there was a risk that the information in it might be collated into a report which would then be submitted to an external regulator.

[96]It was Mr Stark’s belief that the claimant was under an obligation of confidentiality in relation to the disciplinary investigation. This had been clearly communicated to the claimant by Mr Weston when notifying the claimant of the initial disciplinary investigation into Allegation 1. It was also obvious, Mr Stark thought, from the red and blue warnings that were displayed on the Ulysses page.

[97]Mr Stark rejected the notion that the confidentiality belonged to the claimant and was his to waive. In Mr Stark’s opinion, the obligation of confidentiality was owed to the organisation and not to the claimant. It was the claimant’s duty to respect it.

[98]Mr Stark considered the examples provided by Mr Travis. Colleagues had identified individuals in Ulysses reports and had not been disciplined. In Mr Stark’s opinion, the examples were significantly different from the claimant’s case. What made the claimant’s conduct different, in Mr Stark’s mind, was: 98.1. The claimant had deliberately “targeted” the named individuals, whereas the colleagues in the examples appeared to Mr Stark to have identified individuals inadvertently; 98.2. No-one except the claimant had been specifically instructed to keep the matter confidential.

[99]Allegation 3 was a further instance of gross misconduct, in Mr Stark’s opinion. The gross misconduct consisted of disobeying a management instruction.

[100]There was no real doubt about what the claimant had done. The issues for Mr Stark to decide were whether or not the claimant’s actions in working in the reception area were in disobedience of an instruction, whether the instruction was lawful and reasonable, and whether the claimant’s disobedience was unreasonable.

[101]Mr Stark was clear in his mind that the claimant had been instructed not to return to his role or to work in the reception area. He rejected the claimant’s 13 of 22 argument to the contrary. In summary, Mr Stark thought that the claimant’s argument was not credible because the claimant’s own communications showed that he knew he had been instructed to keep away, indeed that the claimant fundamentally objected to that instruction.

[102]In Mr Stark’s view, the instruction not to work in reception had been reasonable because of the ongoing disciplinary process in relation to Allegation 1. Mr Stark believed that the claimant had disobeyed that instruction deliberately and unreasonably. In coming to this conclusion, Mr Stark took into account the alternative working arrangements that had been offered to the claimant.

[103]Mr Stark finally considered Allegation 4. In his view, the claimant had “failed to follow Trust policies and procedures to keep the disciplinary investigation confidential and had further breached Mr Weston’s instruction to keep the disciplinary investigation confidential. This, in Mr Stark’s assessment, was misconduct, but not gross misconduct. What made the difference in Mr Stark’s mind was that the claimant had not actually identified any individuals by name. It was, however, still a failure to keep the disciplinary process confidential because the claimant had identified individuals by their job titles.

[104]Having reached decisions about the four disciplinary allegations, Mr Stark decided what the outcome should be. In his view, nothing short of dismissal would do. A final warning would be an insufficient sanction. As Mr Stark saw it, the claimant had shown no remorse or insight. He had repeated essentially the same behaviour by causing a second inappropriate Ulysses report to be submitted.

[105]By letter to Ms Lumberg dated 3 September 2020, Mr Stark informed the claimant that his employment was being terminated with immediate effect.

[106]The claimant appealed against his dismissal. His initial letter was sent on 7 September 2020. Initially, the claimant provided bare bullet point grounds of appeal. One of these was “Health and Safety legislation and failure to follow the Equality Act”.

[107]He set out his grounds of appeal in more detail in a letter dated 16 September 2020. These were: 107.1. Delay and inconsistency of evidence; 107.2. The change of management team to present the management case (Ms Bogle standing in for Mr Morris) 107.3. The Jackie Green report was not valid 107.4. Parent 3’s evidence had been given insufficient weight 107.5. Mr Travis’ evidence was given insufficient weight 107.6. Management’s failure to call witnesses 107.7. The fact that Parent/Manager 1 was no longer employed by the respondent 107.8. Failure to mention section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[108]These grounds were supplemented by an 11-page statement which the claimant submitted on 28 September 2020. Under the “Health and Safety legislation” ground, the claimant argued, essentially, that any misconduct in the 14 of 22 Parent 3 conversation was mitigated by Mr Weston’s prior failure to protect his health.

[109]Ms Pauline Brown was assigned to chair the appeal panel. Her role was Director of Nursing.

[110]There were five appeal meetings. They spanned the period 7 December 2020 to 18 June 2021. The ongoing lockdown restrictions slowed the process down.

[111]Mr Stark attended the appeal meetings. On the claimant’s behalf, Mr Stark was questioned about the process and reasoning leading up to the dismissal decision. Mr Weston and Mr Travis gave evidence respectively for Mr Stark and for the claimant. Both the claimant and Mr Stark made lengthy written closing submissions.

[112]At the conclusion of the appeal hearing, the claimant provided his consent for the appeal panel to read his occupational health reports. The appeal panel took these into account.

[113]On 30 June 2021, the appeal panel met to consider their decision. Ultimately they decided that the decision to dismiss the claimant should stand.

[114]The panel shared Mr Stark’s restrictive interpretation of the disciplinary policy. They believed that they had to be satisfied that Mr Stark had fairly found the claimant guilty of at least one specifically-alleged act of gross misconduct.

[115]The panel reached a reasoned and detailed conclusion about the claimant’s health prior to the Parent 3 conversation. Like Mr Stark, their focus was not on the claimant’s actual health at the time of the conversation, but the claimant’s allegation that Mr Weston had failed in his duty of care.

[116]The panel considered the circumstances in which Mr Morris had withdrawn from the disciplinary process. They accepted Mr Stark’s explanation, which was that the decision had been made to protect Mr Morris’ “health and wellbeing”.

[117]When considering the claimant’s criticisms of the procedure that had been followed, the panel were reassured by the Jackie Green report. They placed weight on Ms Green’s independence and were able to rely on her report as support for their conclusion that a fair process had been followed.

[118]The appeal panel looked at the various sources of evidence from Parent 3. In the opinion of the panel, Mr Stark had been entitled to treat his evidence with scepticism.

[119]There was no unfairness, in Ms Brown’s mind, caused by the absence of witnesses at the disciplinary hearings. That was not how the disciplinary procedure worked. The panel was satisfied that each party had had an opportunity to call the witnesses that they wanted to call.

[120]The panel reviewed Mr Stark’s conclusions in relation to each of the four disciplinary allegations. They decided that Mr Stark had been entitled to reach the conclusions that he had. They also agreed with the sanction. Like Mr Stark, they thought the entire pattern of conduct was relevant. There was no indication of any remorse or insight.

[121]Ms Brown considered the claimant’s mental health. In the view of the panel, the deterioration in his health was a consequence of the Parent 3 conversation, rather 15 of 22 than a cause of it. The panel did not specifically address the impact of the claimant’s health on the conduct alleged in Allegations 2 and 3.

[122]By letter to Ms Lumberg dated 14 July 2021, the claimant was informed that his appeal was unsuccessful.

Relevant law

[123]Section 98 of the Employment Rights Act 1996 relevantly provides: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that is … a reason falling within subsection (2).... … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[124]One of the reasons listed in subsection (2) is a reason that relates to the conduct of the employee.

[125]Where an employee has been dismissed for alleged misconduct, it is usual for the tribunal to consider: 125.1. Whether the employer genuinely believed that the employee had committed misconduct; 125.2. Whether there were reasonable grounds for that belief; 125.3. Whether the employer carried out a reasonable investigation; and 125.4. Whether the sanction of dismissal was within the reasonable range of responses.

[126]Authority for the importance of these questions can be found in British Homes Stores Ltd v. Burchell

[1980] ICR 303

and Iceland Frozen Foods v. Jones

[1983] ICR 17

[127]In applying the test of reasonableness, the tribunal must not substitute its own view for that of the employer. It is only where the employer’s decision is so unreasonable as to fall outside the range of reasonable responses that the tribunal can interfere. This proposition is just as true when it comes to examining the employer’s investigation as it is for the assessment of the decision itself: J Sainsbury plc v. Hitt

[2003] ICR 111

. 16 of 22

[128]The tribunal must consider the fairness of the whole procedure in the round, including the appeal: Taylor v. OCS Ltd

[2006] IRLR 613

[129]Hadjiouannou v. Coral Casinos Ltd

[1981] IRLR 352

is authority for the following propositions: 129.1. A dismissal that was otherwise fair may nevertheless be unfair if the employer has treated another employee more leniently for the same or similar conduct; but 129.2. The dismissal will not be unfair on this ground unless the circumstances of the two cases were truly alike.

[130]Where the employer consciously distinguishes between an employee’s situation and that of a colleague, the tribunal will not interfere unless there was no reasonable basis for drawing that distinction. Conclusions Starting point

Conclusions

[131]I have reminded myself that there is no dispute about the reason for dismissal. It was a reason related to the claimant’s conduct. In more detail, it was the set of beliefs formed by Mr Stark and Ms Brown that I listed when setting out the issue in the case. That issue is whether the respondent acted reasonably or unreasonably in treating their beliefs as a sufficient reason to dismiss the claimant.

[132]The respondent is a very large organisation. It can be expected to devote considerable resources to carrying out disciplinary investigations.

[133]The claimant was accused of conduct which could seriously affect his ability to find another job in the National Health Service. Breach of confidentiality, in particular, is a serious matter in healthcare settings. The respondent could therefore be expected to investigate thoroughly, including considering evidence that might point towards the claimant’s innocence.

[134]I must view the decision to dismiss the claimant through the lens of the disciplinary policy, as interpreted by Mr Stark and Ms Brown. It might have been open to them to take a more flexible approach, but that is not what they actually thought. Once they formed the opinion that a specific allegation of gross misconduct had to be alleged and proved, it would not be reasonable of them to dismiss the claimant unless they reasonably found that management had discharged that burden. In taking this approach, I am essentially agreeing with the claimant’s Theme 3. Investigation

[135]Before turning to the specific allegations, I address Theme 1, which alleges unfairness in the investigation.

[136]One general point under Theme 1 is that Mr Morris should have attended the disciplinary meetings. In my view, this argument is unfounded. It was reasonably open to Human Resources to agree to release Mr Morris, and it was reasonably open Mr Stark to decide to proceed without him. The respondent had to protect Mr Morris’ health as well as that of the claimant. Ms Bogle could answer some questions. To the extent that Mr Morris’ absence left some questions unanswered, I cannot say that this took the procedure outside the reasonable range. 17 of 22 Allegation 1

[137]There were reasonable grounds for Mr Stark to believe that the claimant had behaved unprofessionally in his conversation with Parent 3. Mr Stark was fully entitled to assess Parent 3’s evidence as having little or no weight, despite the fact that he had attended the disciplinary hearing and answered questions. It would have been surprising if Mr Stark had reached any other conclusion. Parent 3 was unique in making personal, derogatory comments about another person involved in the conversation. The other witnesses had been far more measured. Mr Stark had ample evidence that the claimant had spoken louder than usual, made movements with his arms and stood up behind the reception desk, that the conversation had had some element of confrontation in it, and that the claimant had reacted dismissively towards Parent/Manager 1 when she challenged him. This behaviour could reasonably be seen as part of a pattern when assessing the seriousness of the claimant’s conduct overall.

[138]Those findings were not enough, however. This is because of the way Mr Stark had interpreted the disciplinary policy. Before Mr Stark could act reasonably in dismissing, he also had to form a reasonable belief that the claimant’s behaviour had been not just unprofessional, but aggressive or threatening. Alternatively, he could dismiss the claimant if he believed that the claimant’s actions had brought the respondent into serious disrepute.

[139]Mr Stark and Mrs Brown did not have reasonable grounds for concluding that the claimant had brought the respondent into serious disrepute. The allegation was not made out unless the respondent’s reputation had actually been damaged. Potential disrepute was not enough. At its height, the evidence showed that Parent 2 had felt driven to submit one of about 1,500 PALS complaints that year, in which she had expressed that she would not have anything good to say about frontline staff. One dissatisfied customer is not serious disrepute. Mr Stark and Mrs Brown were entitled to believe that there was the potential that Parent 2 might then tell friends and family. But there was no evidence that this had actually happened.

[140]Mr Stark and Mrs Brown did not have reasonable grounds to find that the claimant had behaved threateningly.

[141]Nobody reported feeling threatened. The most that could be said was that Parent 2 had observed that some children “could be intimidated”.

[142]That left only one route to a finding of gross misconduct. Mr Stark had to be reasonably satisfied that the claimant’s behaviour had been aggressive. There were not reasonable grounds to support that conclusion. Mr Stark and Mrs Brown could not reasonably conclude that the claimant had behaved aggressively, or in any similar way of equivalent seriousness. This was against the evidence of Parent 1 saying that the conversation could become heated, suggesting that it was not yet heated, and was still capable of being “nipped in the bud”. There were multiple sources of evidence of some people feeling “uncomfortable” and others being comfortable. Voices had become “raised”. There was claimant was standing behind reception. Inconsistent reports of his body language varied from shrugging to waving his arms. The setting was relevant. Parent 2’s child had been relieved when it was over. But all of that together did not make the claimant’s behaviour aggressive. 18 of 22

[143]Mr Dawes’ Theme 6 essentially makes the submission that there were no reasonable grounds to find that the claimant had committed the gross misconduct alleged in Allegation 1. I agree with that submission.

[144]Since I have found that there were no reasonable grounds for the belief in Allegation 1, I do not strictly speaking need to consider the procedural challenges that relate purely to that allegation. I do so briefly for completeness. Mr Morris’ report did not mention that the claimant had made a bullying complaint against Parent/Manager 1. Contrary to what the claimant argues in Theme 1, I am satisfied that this omission did not adversely affect the fairness of Mr Stark’s conclusions. First, it was not particularly relevant to the disciplinary allegation. The claimant’s bullying complaint related to how Parent/Manager 1 had intervened and then complained in relation to the Parent 3 incident. What mattered was how the claimant had behaved. Second, and more fundamentally, Mr Stark could have been in no doubt that the claimant thought that Parent/Manager 1 was a bully. Those accusations were already there in the claimant’s interview, his Ulysses reports and in Parent 3’s evidence. Allegations 2 and 4

[145]There were ample grounds for finding that the claimant had breached confidentiality here.

[146]The evidence all pointed one way. The claimant knew generally about the importance of information governance. He had been warned of disciplinary action for actions that might compromise personal data. He had recently completed Information Governance training. He had had input into the confidentiality warning in the disciplinary policy. He had been specifically warned of the disciplinary consequences of breaking confidentiality in the disciplinary investigation. Two prominent warnings had been displayed on the ULYSSES system itself.

[147]Mr Stark believed that confidentiality had been broken in more ways than just revealing the name.

[148]This brings me to the claimant’s Theme 5. Mr Dawes argues that it was unreasonable of Mr Stark and Mrs Brown to conclude that the claimant’s use of the Ulysses system amounted to a breach of confidentiality. From that platform, Mr Dawes contends that the specific allegation of gross misconduct was not proved. According to the claimant, Mr Stark did not actually believe that there was any breach of confidentiality unless an individual had been named. Had Mr Stark believed that other information (such as the existence and detail of a disciplinary investigation, or the role titles of the people involved) was confidential, he would have found that Allegation 4 was also gross misconduct, but he did not. Therefore, argues Mr Dawes, the only thing that could have sustained Allegation 2 was the claimant’s naming of Mr Weston and Parent/Manager 1. It would be unreasonable to dismiss the claimant for that on its own, says the claimant, because colleagues had named people on Ulysses and faced no disciplinary action.

[149]This is an ingenious piece of reverse-engineering. But it depends on two unsound premises: 149.1. First, the claimant’s case appears to be that if a manager thinks that the literal definition of a gross misconduct charge has been satisfied on the evidence, they must make a finding of gross misconduct. That is an unduly mechanistic way of reading the policy. It would allow the respondent no room 19 of 22 to draw back from a finding of gross misconduct, for example, where there were mitigating circumstances. 149.2. Second, the claimant seems to be saying that Mr Stark believed that the only way confidentiality could be breached was by the naming of an individual. Mr Stark did not think that. I can tell that from how Mr Stark actually reasoned his decision under Allegation 4. Mr Stark specifically found that the claimant had disobeyed an instruction to keep the disciplinary investigation confidential. If that is not a breach of confidentiality, it is hard to know what is.

[150]I therefore reject Theme 5.

[151]The claimant launches a further attack on the reasonableness of Mr Stark’s belief that there had been a breach of confidentiality. The recipients of the Ulysses information themselves owed an obligation of confidence. Therefore, says the claimant, even if information was confidential, there were not reasonable grounds for believing that the confidentiality had been breached. If I were to accept that argument, the claimant would have been free to e-mail the details of his disciplinary investigation to the entire Trust. All the respondent’s employees owed an obligation of confidentiality in some form or other. What mattered was the specific duty of confidentiality the claimant had in the information that the respondent was passing to him as part of the disciplinary investigation. This included the identity of the people involved. That was different from the confidentiality duties owed by recipients of Ulysses reports.

[152]The respondent was therefore reasonably entitled to conclude that the claimant had committed the specific gross misconduct alleged in Allegation 2. Allegation 3

[153]Mr Stark believed that the claimant had been given a management instruction not to work in reception and not to work in his current role. He had reasonable grounds for that belief. Such grounds included the claimant’s Ulysses report, his objection to the arrangement, and the e-mail to the claimant’s trade union representative. They all showed that the claimant knew that he was not to return to his role at reception.

[154]The claimant argues that the instruction was ambiguous. As he sees it, one interpretation was that the prohibition on working in reception would only take effect once the claimant’s return to work had formally started. Alternatively, the claimant argues that it should have been clear to Mr Stark that, if any instruction was given, it had lapsed by September 2017, and it was not until November 2017 that the claimant allegedly refused to comply with it.

[155]In my view, Mr Stark had a reasonable basis for rejecting both arguments. It would make no sense to give the claimant an instruction that allowed him to work in reception before he returned to work. The underlying purpose was clearly to keep him away from reception during the disciplinary process; allowing him to work there unofficially would defeat that purpose just as much as allowing him to work there officially. The instruction had not obviously lapsed. It was not timebound. It was not expressly limited to the investigation phase.

[156]There were reasonable grounds for believing that the management instruction was reasonable. Both Aggie Darroch and Janice Tomlinson worked in outpatient patient-facing area. They were witnesses to Allegation 1. At the time the claimant 20 of 22 went to reception to work, it was not yet known whether they would be called to give evidence. The claimant had been offered an alternative role and location in which to work.

[157]This brings me to Theme 2. Mr Dawes argues that it was manifestly unreasonable to place restrictions on the claimant’s return to work. If the respondent wanted to keep the claimant away from reception, the claimant should have been suspended. Moreover, says Mr Dawes, Mr Stark should have realised that when he decided upon the reasonableness of the instruction. I do not accept that argument. Knee-jerk suspension carries its own difficulties. Dido Harding warned against the practice in her report into NHS culture. A return to work with restrictions will usually be more proportionate. Mr Stark was entitled to think that it was a reasonable alternative to suspension.

[158]There was no dispute that the instruction had been breached. The evidence was in any case clear. It was also open to Mr Stark to conclude that the breach had been deliberate. The claimant had demonstrated his knowledge of the restriction and made plain his objection to it.

[159]Mr Stark was entitled to conclude that the claimant’s disobedience had been unreasonable. Again, it was relevant to consider the alternatives that had been offered to the claimant.

[160]The finding of gross misconduct in relation to Allegation 3 was therefore reasonable. Mr Dawes’ Theme 4 argues to the contrary, but I disagree with it. Sanction

[161]It is not enough for an employer to decide what they believe the employee did. Before making a decision about whether to dismiss the claimant, any reasonable employer would have considered whether there were mitigating circumstances that made the claimant’s conduct less serious, and whether that reduced seriousness meant that some lesser sanction was appropriate.

[162]Here there was a weakness in the respondent’s decision. Mr Stark and Ms Brown did not directly consider whether the claimant’s mental health made his behaviour less serious. The claimant mentioned in his Ulysses reports that he had been “stressed” and “depressed” at the time of the conduct alleged in Allegations 2 and 3. Rather than concentrating on the effect of the claimant’s mental health on the seriousness of what he had done, Mr Stark and Ms Brown became sidetracked into tangential questions. One was whether Mr Weston had adequately supported the claimant. They were reasonably entitled to find that he had, based on Mr Weston’s e-mail of 20 April 2017 and the claimant’s failure to try to correct it. Another tangential question was whether the claimant had been fit to carry out his role at the time of the Parent 3 conversation. Again, Mr Weston’s e-mail was a reasonable basis for finding that the claimant was fit for work. A further question, considered by the appeal panel, was whether the claimant’s deteriorating mental health was a cause, or merely a consequence, of the conduct alleged in Allegation 1. None of these conclusions, however, directly addressed the question of mitigation for Allegations 2 and 3. I have to decide whether the respondent’s failure to consider this head-on renders the dismissal decision unfair.

[163]In my view it does not. The context is important. There had been five disciplinary meetings and five appeal meetings. The claimant and his representatives had made a great many points. These included accusing Mr 21 of 22 Weston of failing to support the claimant with his health. Just as it is a natural tendency for an employee to go on the defensive if they are accused of something, the same is true when employers are accused by their workers. It is understandable that Mr Stark and Ms Brown focused on those questions, and in doing so, lost sight of one of the other points that the claimant was trying to make.

[164]The respondent was not obliged to consider each act of gross misconduct in isolation. Mr Stark and Ms Brown were entitled to view each occasion as showing an overall pattern of defiance. The claimant’s manner of speaking towards Parent/Manager 1, though not gross misconduct in itself, was part of the same pattern. That pattern appeared to be confirmed by the claimant’s lack of remorse. It was reasonably open to Mr Stark to discount any possibility of the claimant learning from his experiences and making a fresh start.

[165]The sanction of was therefore within the range of reasonable responses. The claimant’s dismissal was fair.