Mr P Formby v HM Revenue and Customs: 2401816/2019
EMPLOYMENT TRIBUNALS
Case No 2401816/2019
Between
Mr P FormbyClaimantHM Revenue and CustomsRespondent
Before
Employment Judge T. Vincent RyanIn person for claimantMr. A. Serr (instructed by Counsel) for respondentDate 17 December 2019
JUDGMENT
The judgment of the Tribunal is that the claimant was fairly dismissed by the respondent on 26 October 2018 for a reason related to his conduct. The claimant’s claim that he was unfairly dismissed is not well-founded, fails and is dismissed. JUDGMENT having been sent to the parties on 17 January 2020 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The Issues: in a situation where the claimant was dismissed ostensibly for a reason related to his conduct the issues to be resolved were as follows: 1.1. whether the real reason for the claimant’s dismissal was a reason related to conduct; the claimant accepted that there was no other reason than conduct but did not accept that his conduct amounted to misconduct. 1.2. whether the disciplining and appeals officers had a reasonable and genuine belief in the claimant’s “guilt” or responsibility for the alleged misconduct and if so 1.3. whether their belief was based on a reasonable investigation; 1.4. whether dismissal fell within the range of reasonable responses of a reasonable employer; 1.5. Subject to any finding that the dismissal was unfair, issues would then have to be considered as to any risk of dismissal facing the claimant and/or contributory conduct that might affect an award. In the light of my finding on liability, namely that the dismissal was fair, I did not have to consider further any issues relating to the appropriate level of damages.[2]The Facts: 2.1. The respondent is a large employer with detailed HR policies and procedures and professional HR support. It operates a Standard of Conduct which is set out in a formal document entitled HR 22003. These standards included the requirement that employees maintain expected standards of conduct and behaviour in line with the respondent’s values, policies, procedures and guidelines. Furthermore, employees are required to comply with diversity and equality policies in dealing with colleagues and customers. The respondent set out its, and its employees, responsibilities to treat colleagues in a civil, polite, professional and considerate way without discrimination, harassment or victimisation. The respondent confirmed that it would not tolerate bullying or harassment which, if proved, would amount to a disciplinary offence. The respondent operates a detailed disciplinary policy compliant with the ACAS code. In a separate policy document, HR 20207, the respondent set out the statutory rights enjoyed by employees to be accompanied at grievance and disciplinary hearings; it confirms that an employee can complain to the Employment Tribunal if there was a threat or failure to permit a companion attending, conferring, or addressing a hearing (a grievance or disciplinary hearing). 2.2. The claimant was employed by the respondent as an Administrative Officer from 30 June 1999 until his dismissal for a reason related to misconduct on 26 October 2018. The claimant moved to his last Team (Risk and Intelligence) in January/February 2017. He was trained in, and signed up to, the Standards of Conduct referred to above. The claimant was familiar with them and with the operation and application of the respondent’s HR policies and procedures generally. 2.3. On 14 December 2017 an incident occurred between the claimant and colleague A (formerly his line manager but not at this time). A alleged that the claimant touched her inappropriately and made comments that unnerved her to the extent that she did not attend the Christmas meal. She also complained about receipt of an email containing personal information relating to the claimant that was inappropriate; she did not want to know it as it was about a planned weekend away for the claimant and his wife and she felt it should not have been shared with her. 2.4. The claimant’s line manager spoke to the claimant informally on 27th February 2018 to the effect that there was an issue that needed to be investigated. This was not a hearing or even an interview. The line manager was not entitled to embark on either. They were matters for IG. The line manager was only notifying the claimant of an impending investigation. The claimant denied the allegations and asked for a trade union representative to be brought to him; his line manager refused this request at that time. The refusal was on the basis that this was only an informal conversation. The claimant told his line manager, as he later confirmed in a formal situation when he had the benefit of being accompanied by his trade union representative, that he had innocently touched another colleague (F). 2.5. This matter was then referred by IG for investigation to MM and DS who were both appropriate investigating officers. The investigation commenced in March 2019. 2.6. On 8th May 2019 the respondent received a second formal complaint about the claimant’s conduct, similar to the matters above. 2.7. The investigating officers produced a detailed investigation report with appendices including witness statements (with summaries) from 12 colleagues who either complained of what they considered to be inappropriate touching by the claimant, comments or behaviour of a sexual nature by the claimant or at least comments that were open to that interpretation in the context in which they were made. These witnesses described these incidents in terms of harassment in that they were unwanted words or actions that caused them levels of upset, variously described but within what would be understood as creating and intimidating hostile humiliating or offensive environment. 2.8. A had been the claimant’s line manager from June 2017 until March 2018 and she became effectively the 13th witness. She said that she did not see what she considered to be sexual harassment but confirmed that she had received inappropriate emails from the claimant including in which he referred to a “dirty weekend” that he hoped to have with his wife. She also confirmed having received two reports from colleagues against the claimant complaining about his behaviour when she was his line manager. 2.9. The claimant maintained his denials of sexual harassment and harassment. He admitted some “innocent” touching of colleagues. He said he could not recall some incidents referred to by the various witnesses. He accepted that he was the author of certain emails in respect of which some colleagues complained. He admitted complementing a colleague on her appearance and asking her for sight of personal holiday photographs. He admitted sticking out his tongue on one occasion towards a colleague but says that his gesture was not sexual. He admitted referring to certain colleagues as being “gorgeous”, to joking about the word “cocktail” in a conversation about a colleague’s mother and to suggestively asking someone to drop a pair/pear in his mouth. He confirmed that he made comments, which others found uncomfortable, about his own son being gay. The claimant explained this behaviour as being just normal, or banter, or merely joking. He says he was at all times innocent in the things he did and comments he made, none of which he considered to be sexual in nature. This was reflected in the investigation report. 2.10. The claimant also alleged he was the victim of a campaign of bullying and harassment. 2.11. The investigation report was sent to the disciplining officer Mr. M. Southan. He was an appropriate disciplining officer with the power to dismiss if appropriate. 2.12. On 30th of August 2018 the claimant was invited to attend a disciplinary hearing to face eight disciplinary allegations encompassing the above matters including those where the claimant admitted the words and or conduct alleged but denied that they amounted to harassment or sexual harassment. The 1st disciplinary hearing was postponed at the claimant’s request. The disciplinary hearing then took place on 12 October 2018 after the invitation had been reissued on 25 September 2018. Both invitation letters confirmed the claimant’s statutory rights, the seriousness of the allegations, the allegations themselves, the risk of the potential outcomes including dismissal; the procedure was fully explained. The investigation report with appendices was disclosed to the claimant in advance fo the hearing. 2.13. The disciplining officer considered the report and everything that the claimant and his representative had to say. At the conclusion of the hearing he prepared a rationale for his decision which appears in the trial bundle at pages 252 to 254. His written witness statement summarises what occurred, was said, and his decision-making process with rationale. I find that the written rationale and his witness statement are an accurate, truthful, and reliable account of his considerations and deliberations. I found him to be a credible and plausible witness. He decided to dismiss the claimant for gross misconduct without notice. That decision and the written rationale was sent to the claimant on 28 October 2018 (pages 255 to 256 of the trial bundle to which all page references refer). 2.14. The claimant appealed against that decision on the 26 October 2018 (pp 257 – 265) the claimant was critical of the investigation, he alleged collusion, bullying and harassment and that the decision to dismiss was both prejudged and too harsh. 2.15. Mr A. Armitt was appointed as appeals officer; he was an appropriate manager to deal with the appeal having had the requisite training, and experience. His remit was not to rehear but to review his colleague’s decision, specifically the decision to dismiss. The appeals officer rejected the claimant’s appeal and his rationale is set out at pages 276 – 291. In rejecting the appeal, he criticised the investigation as being “less than entirely thorough”. He felt there were a couple of “loose ends” but that this did not render the investigation inadequate, biased, or lacking impartiality. He concluded that the disciplining officer had genuinely believed on reasonable grounds that the claimant was guilty of the alleged misconduct and that “a reasonable investigation was carried out that was sufficient in the circumstances”. Before reaching his decision, he probed the disciplining officer’s rationale. I find that Mr Armitt approached the matter diligently and conscientiously. His witness statement and rationale are a true reflection of his actions, considerations, and deliberations. He was a credible and plausible witness.[3]The Law: 3.1. Section 94 Employment Rights Act 1996 (ERA) states that an employee has the right not to be unfairly dismissed, while s.98 ERA sets out what is meant by fairness in this context in general. Section 98(2) ERA lists the potentially fair reasons for an employee’s dismissal, and these reasons include reasons related to the conduct of the employee (s.98(2)(b) ERA). Section 98(4) provides that once an employer has fulfilled the requirement to show that the dismissal was for a potentially fair reason the Tribunal must determine whether in all the circumstances the employer acted reasonably in treating that reason as sufficient reason for dismissal (determined in accordance with equity and the substantial merits of the case). 3.2. Case law has provided guidance but is not a substitute for the statutory provisions which are to be applied. Case law provides that the essential terms of enquiry for the Employment Tribunal are whether, in all the circumstances, the employer carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that the employee was guilty of misconduct. If satisfied of the employer’s fair conduct of the dismissal in those respects, the Employment Tribunal then has to decide whether the dismissal of the employee was a reasonable response to the misconduct. The Tribunal must determine whether, in all of the circumstances, the decision to dismiss fell within the band of reasonable responses of a reasonable employer; if it falls within the band the dismissal is fair but if it does not then the dismissal is unfair. 3.3. Whilst it used to be the case that emphasis was placed on the rationale and actions of the decision-maker it is now established that the investigator is also key to the question of fairness. If an investigator is acting in an official capacity for an employer that carries authority, and that person misleads the decision-maker or applies undue influence, that may render a dismissal unfair regardless of the good-intent, diligence and impartiality of the decisionmaker. 3.4. Questions of procedural fairness and reasonableness of the sanction (dismissal) are to be determined by reference to the range of reasonable responses test also (Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17). 3.5. The Tribunal must not substitute its judgment for that of the employer, finding in effect what it would have done, what its preferred sanction would have been if it, the Tribunal, had been the employer; that is not a consideration. The test is one of objectively assessed reasonableness. In Secretary of State for Justice v Lown [2016] IRLR 22 , amongst many others, it was emphasised how a tribunal can err in law by adopting a “substitution mindset”; the point was made in Lown that the band of reasonable responses is not limited to that which a reasonable employer might have done. The question was whether what this employer did fell within the range of reasonable responses. Tribunals must asses the band of reasonable responses open to an employer, and decide whether a respondent’s actions fell inside or outside that band, but they must not attempt to lay down what they consider to be the only permissible standard of a reasonable employer.[4]Application of law to facts: 4.1. The claimant was dismissed for a reason related to conduct. There was no evidence before the disciplining and appeals officers or before this tribunal of any collusion or conspiracy to have him sacked. There is no evidence before me that the investigating, disciplining, or appeals officers were involved in any such collusion or conspiracy. There was clearly conduct, including admitted conduct by the claimant, that caused concern and was at very least open to interpretation. Harassment is in the eye of the beholder. The effect to be judged is the effect on the person affected by the unwanted conduct, that is the person on the receiving end, even if the purpose of the alleged perpetrator was not to harass. Here there is evidence suggestive of a serious pattern of unacceptable behaviour that was contrary to the respondent’s standards. 4.2. Both the disciplining and appeals officers approached the matter conscientiously and fairly. They genuinely believed that the claimant’s conduct amounted to gross misconduct warranting dismissal having considered all of the relevant circumstances including the facts of the events, disputed allegations, the claimant’s employment record and longevity of employment, his defence, counter-allegations and his mitigation. 4.3. The investigation was fair. It was criticised at the appeal stage but it fell within the range of reasonable responses of a reasonable employer. An investigation does not have to be perfect but it ought to be reasonable and this investigation was sufficiently efficient, fair, and reasonable in all the circumstances. The investigation covered all the allegations that were made. It gave consideration and weight to the claimant submissions and denials. It provided the disciplining and appeals officers with information both culpatory and exculpatory. There was enough, in the context of the proceedings as a whole, for the management’s case and the claimant’s defence and mitigation to be fully considered by the disciplining and appeals officers; they were so considered. Despite the shortcomings perceived at the appeal stage I, like the appeals officer, could not detect any unfairness to the claimant that affected the outcome; in any event if there had been any then the defect was corrected at appeal when that matter was considered. 4.4. In the circumstances, including the respondent’s duty to its staff to protect them and the respondent’s known standards (on which the claimant had been trained and to which he had signed up) dismissal for a serious, repeated, pattern of behaviour amounting to sexual harassment and harassment falls within the range of reasonable responses of a reasonable employee. I could not say that no reasonable employer would have dismissed the claimant in the circumstances. 4.5. There was no injustice or unfairness to the claimant in his not having a representative at the informal conversation on 27 February with his line manager. Later, on advice and when accompanied by his representative, he gave the same innocent explanation about touching a colleague to the disciplining officer. What was in fact key to the decision to dismiss was the complaints made by colleagues and what the claimant said in defence and mitigation in respect of them to the investigating officer, disciplining and appeals officers rather than to the line manager in that initial informal conversation. 4.6. I did not find any unfairness to the claimant in the way the allegations against him came forward, were investigated, were put to the disciplining and appeals officers or in the way in which either of those officers dealt with them and with everything that the claimant had to say in his defence and in mitigation. He was aware throughout of the requisite standards of conduct. He was made aware of credible allegations. He was given sufficient details upon which to prepare his defence and mitigation. He was given every opportunity, at the investigation stage, and at both the disciplinary and at the appeal hearing, to put forward his defence and mitigation (and at the latter hearing his grounds of appeal against the decision to dismiss him). He was appropriately accompanied by his trade union representative at all formal stages of the procedure and at the investigation. The investigating, disciplining and appeals officers acted diligently, conscientiously, and fairly in making the decisions that they made. 4.7. For the above reasons I find that the dismissal was a fair dismissal. The claimant was dismissed for a reason related to conduct. The claimant’s claim that he was unfairly dismissed is not well-founded; it fails and is dismissed.