Employment Judge Phil AllenMiss A Smith (instructed by counsel) for claimantMr S Gittins (instructed by counsel) for respondentDate 24 January 2025
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of breach of contract is not well-founded and is dismissed.
REASONS
[1]The claimant was employed by the respondent with continuity of employment from 1 December 1994. He was dismissed on 1 December 2023. At the time of the events which resulted in the dismissal, he was the General Store Manager of the Harpurhey store, and by the time of his dismissal, he was the Store Manager of the Swinton store. The claimant alleged that his dismissal was unfair, and that the respondent breached his contract by failing to pay him for notice. The respondent contended that the dismissal was fair being by reason of conduct and that the claimant was not entitled to notice (as he was dismissed for gross misconduct). Claims and Issues[2]At the start of the hearing, the issues were briefly discussed and agreed. This was claim for unfair dismissal and breach of contract (regarding notice). The claimant’s counsel confirmed that the issues were those set out in the case of Burchell and that it was disputed that conduct was the real reason for the dismissal.[3]It was agreed that I would determine the liability issues first, with remedy issues to be determined later if time allowed. However, it was agreed that issues of contributory fault and Polkey would be determined at the same time as the liability issues.[4]In the joint agreed document prepared by counsel, the relevant issues were set out as stated below: Unfair dismissala. What was the reason for the dismissal? The Respondent contends it was conduct. The Claimant disputes this.b. If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether: i. there were reasonable grounds for that belief. ii. at the time the belief was formed the respondent had carried out a reasonable investigation. iii. the respondent otherwise acted in a procedurally fair manner. iv. dismissal was within the range of reasonable responses.c. Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? Wrongful dismissald. What was the claimant’s notice period?e. Was the claimant paid for that notice period?f. If not, was the claimant guilty of gross misconduct/ did the claimant do something so serious that the respondent was entitled to dismiss without notice?[5]In fact, during submissions, the answer to issue (d) was agreed as being three months and it was agreed that the claimant was not paid for that notice period (issue (e)). Accordingly, the only wrongful dismissal issue to be determined was that set out at (f).
Procedure
[6]Both parties were ably represented by counsel. At the end of the hearing, I thanked counsel for the manner in which the hearing had been conducted, which was entirely appropriate.[7]The hearing was conducted by CVP remote video technology with both parties and all witnesses attending remotely.[8]An agreed bundle of documents was prepared in advance of the hearing with 359 pages. Where a number is referred to in brackets in this Judgment, that is a reference to the page number in the bundle. I read only the documents in the bundle to which I was referred.[9]At the start of the hearing, the claimant’s counsel raised two issues regarding documents. She contended that the bundle included a number of redacted documents which should not have been redacted when they were disclosed. She also said that she had difficulty reading the handwritten notes in the bundle which she contended should have been included as typed copies. Disclosure had been completed in May 2024 with a bundle having been prepared in June 2024, but the issues raised had not previously been raised by the claimant. During the time I took for reading on the morning of the first day, the respondent provided a supplemental bundle including unredacted copies of the relevant documents. That contained 107 pages. Where a number is referred to in brackets in this Judgment prefaced with an “S”, that indicates the page in the supplemental bundle. The claimant’s counsel was provided with the small amount of additional time which she sought to review that bundle, by lunch being taken early on the first day before the evidence of any witness was heard. I indicated that the notes in the bundle were not the most difficult to read I had ever seen, and the claimant’s counsel did not pursue any application regarding those notes following the restart of the hearing.[10]I was provided with witness statements from each of the witnesses called to give evidence at the hearing. On the first morning, after an initial discussion with the parties, I read the witness statements and the documents referred to. One statement provided by the respondent (that of Ms Hodgeson) was not relied upon by the respondent for the liability issues (or those issues being determined alongside the liability issues), and therefore I did not read that witness statement.[11]I heard evidence from the following witnesses called by the respondent: Mr Daniel Quartermain, General Store Manager for the Wigan store and the person who made the decision to dismiss; and Ms Gail Jordan, Retail Senior Director – Lancashire and the person who heard the appeal. Each of the witnesses was crossexamined by the claimant’s counsel and I asked questions. Mr Quartermain gave evidence for the whole extended afternoon of the first day. Ms Jordan gave evidence for approximately the first hour of the second day.[12]The claimant provided a witness statement from Ms Diane Coupe, Customer Service Manager and the Manager National Colleagues’ representative who accompanied the claimant to the appeal hearing. The respondent’s counsel had no questions for her, so her evidence was accepted without her needing to attend. Mr Grant Landsman, Store Manager of the Cheadle Hulme store, was also called by the claimant. To minimise the time when he needed to attend the hearing, he gave evidence on the morning of the second day before the claimant, was briefly cross examined and I asked a question. I heard evidence from the claimant later on the morning of the second day and during part of the afternoon. He was cross examined by the respondent’s counsel, before I asked him questions.[13]After the evidence was heard, each of the parties was given the opportunity to make submissions. They each made their submissions orally. Very helpfully, the parties’ counsel had prepared and agreed a document which set out the law which I needed to consider, which was sent to me during the break prior to submissions and which I read. There was only one element of that document which was not entirely agreed by the two counsel.[14]As submissions concluded late on the second day, there was insufficient time available for a decision to be reached and for the parties to be informed of that decision. Accordingly, liability Judgment was reserved.[15]During the hearing, and in particular during Ms Jordan’s cross-examination, there was reference to advice given by the respondent’s Advice & Guidance helpline. I questioned why there were no documents available which recorded that advice, when I would have expected there to be. The respondent committed to try to find such documents, albeit their counsel did highlight that it might not be possible to do so during the hearing. Following the conclusion of the hearing, on 6 January, the respondent sent to the Tribunal an email attaching documents recorded by Advice and Guidance, albeit not of a conversation with Ms Jordan. I did not look at those documents, but asked the claimant’s view on whether it was agreed that I should do so. The claimant objected to my doing so (for valid reasons). In the light of the objection, the respondent responded that they were neutral on the matter (having highlighted that they had disclosed the documents in accordance with their ongoing duty of disclosure). As a result, I did not read the documents provided after the hearing had ended.[16]This document contains my Judgment on the liability issues (and those issues it had been agreed would be determined alongside the liability issues) and my reasons for reaching those decisions.
Facts
[17]The claimant had continuity of employment with the respondent from December 1994. He TUPE transferred to the respondent on 5 September 2011. He transferred as a Store Manager and worked as a Store Manager in a number of stores. In March 2017 he was given the respondent’s award for national engaging leader. He was promoted to General Store Manager in January 2020. It appeared that he had undertaken a successful career throughout his time with the respondent, until the events about which I heard evidence.[18]Included in the bundle of documents were the respondent’s investigations policy (110), disciplinary policy (88), and appeal policy (77).[19]I was also provided with the disciplinary guidance booklet which, it was not in dispute, was something which was to be followed at the time. Within that booklet was a table of company standards (164) which recorded that “Inappropriate behaviour or comments in work or at social or training events” was “Misconduct” as the potential level of misconduct, in contrast to other entries which were described as “Gross Misconduct”. At the foot of the same page, it was said “Consider all allegations with a case to answer and the unique facts of the case. Aggravating/mitigating factors may warrant more or less severe accountability. This document is for guidance only and the decision as to the level of sanction applied is at the discretion of the Disciplinary Manager.”. Considerable emphasis was placed upon the categorisation on that page by the claimant and his counsel. I understood why they did so and did consider what was said in reaching the decisions which I needed to, but in the light of what was said at the foot of the page and the fact that I concluded that what was said could not mean that all inappropriate behaviour (no matter of what nature and duration) could not be grounds for dismissal, I found that it did not carry the importance placed upon it.[20]A different page of the guidance booklet addressed conflicts of interest (144). That recorded that deliberately concealing or attempting to conceal a personal relationship in a reporting line, was gross misconduct for the more senior person. That page contained the same footer that I have described.[21]In October 2021 the claimant moved to be the General Store Manager at the Harpurhey store. It was the claimant’s uncontradicted evidence, that he turned around a store which was achieving zero KRAs when he joined, to one that was achieving 50% of the KRAs in his first year. As General Store Manager, the claimant was the person who managed the store, and it was not in dispute that the buck stopped with the GSM and that he was somebody expected to set an example for the other staff in the store.[22]The evidence that I heard, was that a Section Leader who worked at the Harpurhey store had mental health challenges. The claimant described how the individual had down periods and he felt it was part of his duties to support that individual. For all, or almost all, of the period during which the claimant was the GSM at Harpurhey (the claimant could not confirm when it started, but he did not dispute that it went on for eighteen months), the Section Leader would threaten to tweak the claimant’s nipples. There was no dispute that such conduct occurred between the two on occasion throughout the period. The claimant’s evidence was that he did not instigate it, he could not recall whether he had initially endeavoured to stop it, but he did not ultimately do anything about it.[23]In December 2022, one of the new owners of the respondent made an unannounced visit to the store. It was the claimant’s evidence that, given the time of year and that it was a Saturday afternoon, the store was extremely busy to the extent that it was difficult to walk down each aisle in the store. The claimant’s evidence was that, as a result of this visit, he was subsequently unfairly subjected to criticism and scrutiny in his management of the store. The claimant suffered health issues in 2023. He took the decision to step down to Store Manager and move to an alternative location. It was the claimant’s evidence, that he did so when he was threatened with a performance plan (which he was never shown). It was clear that the claimant had struggled at the end of his time as GSM at Harpurhey.[24]In September 2023 a grievance was raised by an employee in the Harpurhey store. He did so at the same time as resigning from his employment. His grievance was investigated, and a number of people interviewed. Much of it was not upheld. One element of his grievance was that there had been a lack of professionalism in the workplace. That element was upheld, and it was said that inappropriate behaviour of leaders had taken place (S106).[25]I was provided the notes of a Section Leader’s interview on 11 October 2023 (S44). The Section Leader was asked about the act of the claimant and the Section Leader tweaking each other’s nipples; he said that he had done, and “we got on, he does the same to me. Just a laugh”. He said it had begun about eighteen months before, and he said everybody in the leadership team would have witnessed it.[26]On 10 and 13 October 2023 the claimant was interviewed as part of the grievance process. I was provided with notes (S24 and S56). It was the claimant’s evidence that in the interviews he explained that he had gone along with the Section Leader’s gesturing as a way of helping him cope. He admitted that he had let the gestures slide, as it appeared to be a way that he felt included in the team and was thought to be a coping mechanism for him and it cheered him up when he was struggling.[27]After the grievance process, the claimant was informed that he was being investigated for alleged offensive and unacceptable behaviour. An investigation was undertaken by Chris Baxter, another General Store Manager. The investigation relied to a significant extent upon statements taken as part of the grievance investigation. An investigation meeting with the claimant was undertaken on 7 November 2023 at which notes were taken (206). Within the questions that the claimant was asked, there was also mention of the same Section Leader also threatening to hit the claimant in the genitals, something the claimant denied. His evidence at the Tribunal hearing was that he said he did not know where that particular allegation had come from. That particular allegation was not part of the disciplinary allegations for which the claimant was dismissed. In the interview, the claimant agreed that, with hindsight, the behaviour (as it related to threatening nipple tweaks) had been inappropriate, and the claimant should have tried a different avenue with the Section Leader. A mention of age was made by Mr Baxter during the investigatory interview, which the respondent acknowledged was not something which should have been said.[28]The claimant was not suspended. I was shown the suspension risk assessment which recorded why that decision had been made on 7 November 2023 by Mr Baxter (228). The allegation was described as “Inappropriate behaviour (historic)” and it was said the level of risk was “low”. The claimant contrasted what was recorded with what was subsequently found at the end of the disciplinary hearing and the decision to dismiss. It was clear from Mr Quartermain’s evidence that he did not agree with Mr Baxter’s decision on the suspension.[29]I was provided with the investigation recap form completed by Mr Baxter (220). In it, he summarised what had been said by those interviewed as part of the investigations. It was recorded, that Mr Wardle had said that there had been inappropriate behaviour between the claimant and Section Leaders (plural). Ms Jones was summarised as having seen Section Leaders tweaking the claimant’s nipples, and she had named a different employee as having done so. Mr Frangleton, a manager, was recorded as having witnessed the same inappropriate behaviour with the claimant by two people, one being the relevant Section Leader. No investigation or action was taken against any of the others named as having been involved in any such behaviour (or having witnessed such behaviour and not acted to stop it), save for the claimant.[30]It was the claimant’s uncontradicted evidence that, when Mr Baxter informed the claimant that he would be forwarding the case to a disciplinary hearing, he had started to read from a pre-prepared statement but had to stop. He appeared very uncomfortable, apologised, and adjourned the meeting to get a drink of water. Upon his return, Mr Baxter was unable to read from the pre-prepared statement and so the People Business Partner who was also present, did so.[31]The claimant was invited to a disciplinary hearing in a letter of 20 November 2023 from Mr Quartermain, the GSM for a different store (231). The allegation was “that over an 18-month period as the GSM at Asda Harpurhey, you have engaged in behaviour with a Section Leader that is offensive and is considered widely unacceptable as a leader in our business”. The claimant was told that this “is a gross misconduct meeting” and any form of disciplinary action might be taken, which may mean that the claimant’s employment with the respondent would be ended.[32]In cross-examination, Mr Quartermain denied that he had made the decision to dismiss before the meeting with the claimant. When it was put to him that the wording used showed that the outcome had already been determined, he denied that it did and referred to having used a template letter for the invite to the meeting.[33]The disciplinary hearing took place on 1 December 2023. It was conducted by Mr Quartermain, the GSM for a different store. The claimant was accompanied by a Store Manager. A People Business Partner also attended. Notes were taken (232). In the hearing, the claimant confirmed that the Section Leader had attempted to pinch his nipples over a period whilst the claimant was at the Harpurhey store. The claimant said that whether it was acceptable depended upon the context. He said that the context which made it acceptable was that he had been supporting a colleague. He explained that as being because of the colleague’s mental health, he was trying to find common ground or whatever. The claimant confirmed that he had made a threat of attempting to tweak the Section Leader’s nipples, by going towards him as if he was going to do so (235).[34]The disciplinary hearing was adjourned and reconvened after a break. Mr Quartermain informed the claimant of the outcome. The claimant was dismissed with immediate effect. Included in the notes, were Mr Quartermain’s considerations when reaching his decision (244), which I do not need to re-produce in this Judgment (but considered). Mr Quartermain did record at the time that he considered that the claimant had said that no other behaviour like this had happened before or after, and that he had thirty years’ experience with no previous warnings on his file. Towards the end of the note, what was recorded was: “In summary, it is my belief that Matt has behaved in an inappropriate and unprofessional manner. A GSM should be leading by example, clearly Matt did not do this.”[35]In his witness statement, Mr Quartermain explained at some length both the decision he had reached and the reasons for his decision (including the reasons why he considered dismissal to be the appropriate sanction for what he had found). I noted that he said that the misconduct had been admitted and he relied, in part, upon the fact that the claimant had admitted allowing the Section leader to threaten to tweak his nipples and threatening to (or pretending to) tweak the Section Leader’s nipples himself. He recorded that he had considered as mitigating factors the claimant’s length of service and clean disciplinary record, and the points made by the claimant about his physical and mental health whilst at the Harpurhey store. I do not need to restate in this Judgment all of the reasons which he set out for determining that dismissal was the appropriate sanction, but I noted that he considered the length of time that the conduct had been going on, the claimant’s position of responsibility as a GSM, and the impact of the claimant’s behaviour on the store (he described this as a serious failing for someone in a leadership role), as relevant factors. It was Mr Quartermain’s evidence, that he did not think it mattered or made much difference, who had started the conduct or whether there had in fact been any physical contact (something the claimant denied had occurred).[36]After the disciplinary hearing, the claimant was required to clear out his car and handover the keys. His car was parked at another store a long way from his home. The claimant objected to this and the fact that it left him a long way from home without transport.[37]The decision was set out in a letter sent later that day (248). The letter confirmed the decision made and the reasons for it. There appeared to be some criticism of the speed with which the letter was produced or a suggestion that by doing so it was proof that the decision had already been made. I considered the speed with which the decision letter was produced to be positive rather than something which could be criticised or proved anything contrary to what was said.[38]The claimant appealed and his appeal was heard on 4 January 2024. The appeal was conducted by Ms Jordan. A People Business Partner attended and was the note taker. Ms Coupe, who gave unchallenged evidence on the claimants’ behalf, also attended the appeal hearing as his accompanier. In her evidence, she made no adverse comment about the conduct of the appeal hearing. I was provided with notes of the appeal hearing (261). In the hearing, the claimant was recorded as having said that the only thing he had admitted to was attempting to nipple tweak one Section leader when he was down.[39]Following the appeal hearing, Ms Jordan decided she needed to carry out further investigation. It was her evidence that she did so in response to what she had been asked to do by the claimant. She interviewed two people about: the claimant’s health while at the Harpurhey store (and what had been known about his health); and whether there had been an ulterior motive behind the decision. Notes were taken. Those notes were not provided to the claimant prior to the appeal decision, nor was the appeal hearing reconvened to allow the claimant to respond to what had been said.[40]Ms Jordan provided her appeal decision to the claimant in a letter dated 24 January 2024 (282). The appeal was not upheld. In her letter, Ms Jordan addressed each of the grounds upon which she had understood the claimant had appealed (under the broad headings of fact, severity, and procedure). Ms Jordan did confirm that she did not consider that the claimant should have been asked questions about his age during the investigation, however she did not consider that the claimant’s age was taken into account when the disciplinary manager came to his decision.[41]In her witness statement, Ms Jordan explained at some considerable length the reasons for her decision. I will not reproduce in this Judgment all that she said. She said that she had no doubt that the behaviour amounted to gross misconduct. She emphasised that the behaviour had been repeated and involved a more junior colleague. She also said that it was normal procedure in circumstances like those being considered, for the more senior member of the team to be sanctioned. She explained that as being the right thing to do, because often the more junior colleague could feel coerced into the behaviour and wouldn’t know what to say to a more senior manager. Ms Jordan explained that a key consideration in the claimant’s case was the impact that his behaviour had upon the culture and behaviour in the store, and she addressed why she felt that the example of the claimant’s behaviour might impact upon others believing that inappropriate behaviour was acceptable and would not be challenged. Ms Jordan emphasised that the claimant was a store manager who was expected to set the tone for the store. She described the decision as having been a difficult one and that she had considered whether another sanction would have been more suitable.[42]The claimant contrasted his treatment with that of another employee, Mr Landsman. He had done so during the respondent’s internal processes, including in the appeal. Mr Landsman had had a personal relationship with another employee in his store when GSM, which he had not disclosed to the respondent. He was not dismissed. Mr Landsman gave evidence for the claimant. He was demoted to Store Manager following a disciplinary process in April 2017. Mr Landsman was a genuine and credible witness whose evidence was clearly difficult for him to give.[43]Before reaching his disciplinary decision, Mr Quartermain spoke to the respondent’s Advice and Guidance helpline. He acknowledged that in his witness statement, but no notes from those providing the advice were included in the bundle. As recorded above, it appeared that some notes were provided after the hearing had finished, but I did not consider them. Before reaching her decision, Ms Jordan also spoke to the Advice and Guidance helpline. She omitted to mention that in her witness statement, but placed some reliance upon it during cross-examination. There was no note of what she was told. There was also no record available to show who exactly had provided the guidance and whether that was the same person who had advised Mr Quartermain.[44]I heard a lot of evidence. This Judgment does not seek to address every point about which I heard or about which the parties disagreed. It only includes the points which I considered relevant to, and necessary to record about, the issues which I needed to consider in order to decide if the claims succeeded or failed. If I have not mentioned a particular point, it does not mean that I have overlooked it.
The Law
[45]For an unfair dismissal claim brought under section 94 of the Employment Rights Act 1996, the respondent bears the burden of proving, on the balance of probabilities, that the dismissal was for the potentially fair reason given (here misconduct). If the respondent fails to persuade me that it dismissed the claimant for the reason of misconduct, the dismissal will be unfair. Albeit it is for the employer to show the reason for the dismissal is a potentially fair one, the burden of proof at this stage is not a heavy one. It does not require the employer to have to prove that the reason actually did justify the dismissal at this stage (Gilham and ors v Kent County Council (No.2) 1985 ICR 233).[46]If the respondent does persuade me that it did dismiss the claimant for that reason, the dismissal is only potentially fair. I must then go on and consider the general reasonableness of the dismissal under section 98(4) of the Employment Rights Act 1996. That section provides that the determination of the question of whether a dismissal is fair or unfair depends upon whether in the circumstances (including the respondent’s size and administrative resources) the respondent acted reasonably or unreasonably in treating the misconduct as a sufficient reason for dismissing the claimant. That is to be determined in accordance with equity and the substantial merits of the case.[47]In conduct cases, when considering the question of reasonableness, I am required to have regard to the test outlined in British Home Stores v Burchell [1980] ICR 303. The three elements of the test are:(1) Did the employer have a genuine belief that the employee was guilty of misconduct?(2) Did the employer have reasonable grounds for that belief?(3) Did the employer carry out a reasonable investigation in all the circumstances?[48]The additional question required, is to determine whether the decision to dismiss was one which was within the range of reasonable responses that a reasonable employer could reach?[49]For the unfair dismissal claim, I must not substitute my own view for that of the respondent. I must not slip into what is sometimes called the substitution mindset. It is not for me to decide whether the claimant committed the particular misconduct alleged, or whether the respondent has proved that he did so. I also must not decide whether I would have dismissed the claimant had I conducted the disciplinary hearing and considered the evidence which was in front of the decisionmaker.[50]For an act to amount to gross misconduct it must be an act which fundamentally undermines the employment contract (it must be repudiatory conduct by the employee going to the root of the contract) (Wilson v Racher 1974 ICR 428). The conduct must be a deliberate and wilful contradiction of the contractual terms or amount to gross negligence (Laws v London Chronicle (Indicator Newspapers) Ltd 1959 1 WLR 698, CA, and Sandwell and West Birmingham Hospitals NHS Trust v Westwood EAT 0032/09).[51]In Burdett v Aviva Employment Services Ltd EAT 0439/13 the Employment Appeal Tribunal found that the Tribunal had failed to properly evaluate whether there were reasonable grounds for the employer to conclude that the employee’s conduct amounted to blameworthy gross misconduct. They found that, assuming that there were reasonable grounds for a finding of gross misconduct, the Tribunal should have assessed whether it was within the range of reasonable responses for the employer to dismiss for that gross misconduct. It cannot simply be assumed that a finding of gross misconduct will always justify dismissal. Evidence of mitigation was highly relevant in that case and the Tribunal had fallen into error in failing to consider its impact on the reasonableness of the sanction imposed.[52]A lapse in time between the conduct in question and the dismissal may mitigate against a finding that the conduct amounted to gross misconduct. In Barron v Norfolk County Council ET Case No.3401010/15, as an example, a Tribunal considered that after the employee had worked without criticism for four years after the incident, it was hard to see how the employer could categorise it as gross misconduct, even if it had been able to establish conduct as the reason for dismissal.[53]In considering the investigation undertaken, the relevant question is whether it was an investigation that fell within the range of reasonable responses that a reasonable employer might have adopted? Where I am considering fairness, it is important that I look at the process followed, as a whole. I am also required to have regard to the ACAS Code of Practice on disciplinary and grievance procedures. In A v B 2003 IRLR 405, the Employment Appeal Tribunal stated that the gravity of the charges and the potential effect on the employee will be relevant when considering what is expected of a reasonable investigation. Where a disciplinary investigation has been unduly influenced by a third party, such as an HR department, this could compromise the fairness of the process and render any subsequent dismissal unfair (Chhabra v West London Mental Health NHS Trust 2014 ICR 194).[54]There is no burden on either party when considering the reasonableness of the dismissal (Boys and Girls Welfare Society v Macdonald 1997 ICR 693).[55]In Iceland Frozen Foods Ltd v Jones 1983 ICR 17 the Tribunal stated that: “We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”[56]Reasonableness can only be assessed by considering the facts or thought processes at the time (W Devis and Sons Ltd v Atkins 1977 ICR 662).[57]I must look at the circumstances in the round and procedural imperfections do not automatically render dismissals unfair (Taylor v OCS Group Ltd 2006 ICR 1602).[58]The band of reasonable responses test applies to the procedure as well (J Sainsbury plc v Hitt 2003 ICR 111).[59]In MacNab v British Telecommunications plc ET Case No.S/4100696/17, the Tribunal noted that the decision to dismiss was at the harsher end of the scale, and that some employers might have chosen to give a warning in light of the particular claimant’s long service and clean disciplinary record. However, it concluded that dismissal was within the range of reasonable responses, given the requirement for trust and the need for engineers to work unsupervised.[60]Relevant to this case, were considerations of consistency. If an employer is inconsistent in the sanction applied to comparable circumstances, that can render a dismissal unfair, even if the dismissal would otherwise have been fair. Reliance was placed upon the case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 and the three categories set out in the Judgment in that case. In the Judgment in that case it was said: “counsel for the respondents, Mr Tabachnik, has submitted that an argument by a dismissed employee based upon disparity can only be relevant in limited circumstances. He suggests that, in broad terms, there are only three sets of circumstances in which such an argument may be relevant to a decision by an Industrial Tribunal ... Firstly, it may be relevant if there is evidence that employees have been led by an employer to believe that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. Mr Tabachnik illustrates that situation by the argument advanced in the present case on behalf of the appellant, that the general manager was determined to get rid of him and merely used the evidence about the incidents with customers as an occasion or excuse for dismissing him. If that had been the case, the Industrial Tribunal would have reached a different conclusion on the appellant's complaint but they considered the submissions about it and rejected them. Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances. We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinize arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument.”[61]In Doys v Clays Ltd EAT 0034/18, what was “truly parallel” was identified as to mean “truly similar or sufficiently similar”.[62]The respondent also placed particular emphasis upon MBNA Ltd v Jones [2015] UKEAT/0120/15 in relation to disparity of treatment and unfair dismissal, a case where the Employment Appeal Tribunal overturned a finding of unfair dismissal where there had been a failure by the Tribunal to recognise key differences between the cases.[63]The one aspect of the legal skeleton argument which was in dispute, was what was included about one particular case. The respondent’s counsel had included it in the document and submitted that it remained good law. The claimant’s counsel asked me to treat what was said with care, as it had predated section 98(4) and was not an authority she had been able to find in the time available. What was said in the legal skeleton argument document was that managers faced with a decision to dismiss an employee in particular circumstances might take one of two decisions: to dismiss or not to dismiss. Dismissal does not mean they have acted unfairly because there are plenty of situations in which more than one view is possible. The disputed case referred to was Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251 and I treated that reference with care (and, in fact, placed no reliance on it), as the claimant’s counsel asked.[64]In Polkey v AE Dayton Services Ltd [1987] IRLR 503 the House of Lords held that the fact that an employer can show that a claimant would have been dismissed anyway (even if a fair procedure had been adopted) does not make fair an otherwise unfair dismissal. However, such evidence (if accepted) may be taken into account when assessing compensation and can have a severely limiting effect on the compensatory award. If the evidence shows that the employee may have been dismissed properly in any event, if a proper procedure had been carried out, a Tribunal should normally make a percentage assessment of the likelihood and apply that when assessing the compensation. I must have regard to all the evidence when making that assessment, including any evidence from the claimant.[65]Section 122(2) of the Employment Rights Act 1996 provides that the basic award shall be reduced where the conduct of the employee before dismissal was such that it would be just and equitable to do so. A key part of the test is determining if it is just and equitable to do so. Section 123(6) of the Employment Rights Act 1996 provides that if I find that the claimant has, by any action, to any extent caused or contributed to his dismissal, I should reduce the amount of the compensatory award by such amount as I consider just and equitable having regard to that finding. This test differs from the test which applies to the basic award. The deduction for contributory fault can be made only in respect of conduct that persisted during the employment and which caused or contributed to the employer's decision to dismiss. There are three factors required to be satisfied for me to find contributory conduct: the conduct must be culpable or blameworthy; it must have cause or contributed to the dismissal; and it must be just and equitable to reduce the award by the proportion specified (Nelson v BBC (No 2) [1979] IRLR 346).[66]What I must determine in the breach of contract claim differs from the questions I must determine in the unfair dismissal claim. For the breach of contract claim, the legal question is whether the respondent dismissed the claimant in breach of contract. Dismissal without notice will be such a breach unless the respondent is entitled to dismiss summarily. A respondent will only be in that position if the claimant was himself in breach of contract and that breach was repudiatory. I must therefore decide whether the claimant was in fundamental breach of contract.[67]Within this section on the law, I have reproduced much of the very helpful agreed statement of the law, as agreed by the parties’ counsel. Conclusions – applying the Law to the Facts[68]The first question I needed to determine under the agreed list of issues, was what was the reason for the dismissal? The Respondent contended it was conduct. The Claimant disputed that it was. I accepted the evidence of the respondent’s witnesses about the reasons why they reached the decisions that they did. Mr Quartermain dismissed the claimant because of his view of what the claimant had done, which he considered to be misconduct. I accepted that was the reason for the dismissal.[69]In her submissions, the claimant’s counsel said that I should draw an inference from the facts of this case, including the supervision of the Harpuhey store after the new owner’s visit and the management of the claimant, that the reason for the dismissal was not that relied upon by the respondent. I did not hear any evidence which would have led me to draw such an inference. As I have said, I accepted Mr Quartermain’s evidence that he dismissed the claimant for the reasons he gave (and I also accepted Ms Jordan’s evidence that she upheld the dismissal decision on appeal for the reasons she explained).[70]The second question which I need to decide was did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? That required me to consider the four questions which I have set out in the issues section above and the section on the law, albeit the question I was required to decide is that set out in section 98(4). I will address each of those matters below. However, my finding was that the respondent did act reasonably in all the circumstances in treating the misconduct found as a sufficient reason for dismissing the claimant.[71]I found that there were reasonable grounds for the belief that the claimant had committed the misconduct found. The claimant admitted that he had allowed the Section Leader to threaten to tweak the claimant’s nipples over approximately an eighteen-month period. He was the GSM with ultimate responsibility for the entire store and the culture in the store. Those were reasonable grounds for the belief.[72]An investigation was undertaken. A disciplinary hearing was conducted. The claimant was given the opportunity to say what he wished to at the hearing. An appeal was conducted. I found that a reasonable investigation was undertaken into what was alleged.[73]The claimant’s counsel was critical of the process followed. I found that the procedure followed by the respondent was fair. I did not find it to have been unfair for reliance to have been placed on statements taken for the purposes of the grievance investigation. I did not find that Mr Quartermain should have required others to be spoken to as part of an investigation. The facts which were central to Mr Quartermain’s decision, were in practice those admitted by the claimant in the hearing.[74]As with many cases, the claimant’s representative was able to propose ways in which the process could have been more thorough, but I found the process followed (including, in particular, the investigation) to have been a fair one, falling within the range of reasonable processes which would be followed by a reasonable employer of the respondent’s size and resources.[75]The claimant’s counsel submitted that the appeal was a tick box exercise. I did not find that to have been the case, and I had no doubt that Ms Jordan reached her own decision on the appeal based upon her own view of what had occurred and the view she took of that conduct and the appropriate sanction for it. It would have been preferable if Ms Jordan had expressly addressed in her appeal decision the case which the claimant raised in the appeal as allegedly showing inconsistent treatment, but I accepted that she did not consider that case to be directly relevant (which was the same view that I reached about it). It also would have been more thorough for the appeal to have been reconvened (or at least the claimant to have been given the option of reconvening) after the investigatory interviews were undertaken during the appeal process, but in this case I did not find that the failure to do so rendered the dismissal unfair.[76]I did consider the involvement of the respondent’s Advice and Guidance helpline. It was in some ways unsatisfactory for both the disciplinary decision-maker and the appeal decision-maker to take into account what they were told by an unidentified and unrecorded third party or parties, particularly where I was not provided during the hearing with any record of what had been said. That concern was increased by the failure of Ms Jordan to even mention that advice in her witness statement, when from her oral evidence it was clear that it was something upon which she placed reliance. I did however accept that both Mr Quartermain and Ms Jordan reached their own decisions for the reasons they evidenced. I did not find that the involvement of the unknown advisors rendered this dismissal unfair in the circumstances of this case.[77]I did consider one element of the appeal decision letter to have stated something which Ms Jordan, as the appeal decision-maker, was not in a position to say. She did not speak to Mr Quartermain about his decision as part of her decision. She recorded that she did not consider that the claimant’s age was taken into account by the decision-maker. That was simply something which she was not in a position to state. However, I considered that to have been a relatively minor issue within the appeal decision and did not consider either the mention of age by the investigator, or Ms Jordan’s unsubstantiated finding, to mean that the dismissal was unfair applying the test in section 98(4).[78]I found that the decision to dismiss the claimant was within the range of reasonable responses of a reasonable employer. Taking account of what had occurred over an extended period of time, and the claimant’s role, dismissal was within the range of reasonable responses. I particularly noted and took into account the length of time over which the conduct had continued, and the claimant’s role (including what the respondent’s witnesses described about the impact that the conduct involving the GSM would or might have upon the behaviours of others in the store, or what they might believe about the respondent’s approach to inappropriate behaviour). For the unfair dismissal claim, it was not determinative of the fairness of the decision whether I considered the outcome to be harsh in the light of the claimant’s length of service and record, I found that it did fall within the range of reasonable responses which a reasonable employer could reach (even if other reasonable employers would not have dismissed the claimant).[79]At the end of the claimant’s cross-examination, he was asked about his ability to take disciplinary action against others who engaged in inappropriate behaviour in the store, where he had over a long period engaged in the interactions with the Section Leader which had occurred. The claimant accepted that he could not have done so. I found that to be an important point. It was also, to an extent, unique to a GSM. I accepted that the claimant’s continued allowance of, or engagement in, the actions with the Section Leader effectively undermined his own ability as the most senior person in the store, to take the actions which might be necessary where others were engaging in inappropriate conduct.[80]I considered the claimant’s arguments around inconsistency. I did note that others were not subjected to a disciplinary process at all. The Section leader who had threatened to tweak the claimant’s nipples was not disciplined or dismissed. No investigation was undertaken into another employee within the store who was alleged to have also taken part in similar conduct. Others in senior roles who had observed the claimant’s interactions with the Section Leader, were also not investigated.[81]I did consider carefully what was said in Hadjioannou, which is why I have quoted at such length the key passage in that case. The respondent drew a clear distinction between the claimant as the GSM ultimately responsible for the store, and the other more junior staff. It explained the difference in treatment of those involved primarily on that basis. I understood that distinction and accepted that meant that the claimant’s circumstances and those of others were not truly similar or sufficiently similar to mean that this case fell within the categories in that case. The difference in role and the fact that the claimant was GSM, explained the difference in approach and sanction. I found it to be entirely understandable that someone who had undertaken threats to nipple-tweak in a store where the GSM did not stop it, was not culpable for misconduct in the same way or to the same extent as the GSM who had allowed that conduct to occur and to continue over an extended period. I did consider whether the absence of any formal approach to others about the conduct meant (applying the third category in Hadjioannou) that it was not within the range of reasonable responses for the respondent to dismiss the claimant in this case, but I accepted that the difference between his role and that of the others meant that the dismissal of the claimant was not rendered unfair as a result.[82]I found that the evidence about what had happened with Mr Landsman did not add anything to the claimant’s case. The decision made had been made by a different decision-maker some years ago about entirely different and unrelated circumstances/misconduct. I accepted that the decision in Mr Landsman’s case appeared to have been less harsh than that made for the claimant. However, the differences were too significant for it to make any difference in my view to the claim for unfair dismissal brought by the claimant. As the respondent’s counsel submitted with reference to the MBNA case relied upon, there were key differences between the facts of Mr Landsman’s case and those of the claimant.[83]In her submissions, the claimant’s counsel highlighted the decision not to suspend the claimant and what was said in the suspension risk assessment. Whilst I noted the apparent discrepancy between Mr Baxter’s view of the severity of the misconduct with that of Mr Quartermain and Ms Jordan, I did not find that disparity rendered the dismissal unfair. When the claimant was invited to the disciplinary hearing, he was informed that an outcome could be dismissal. He was not given any false expectation. It appeared to have been the case that Mr Baxter would not have dismissed the claimant had he made the decision, but that did not render Mr Quartermain’s decision to do so unfair. I would add that, whilst the wording of the invite letter regarding gross misconduct may have been more definitive than I would normally expect to see, I accepted Mr Quartermain’s evidence that he had not predetermined the outcome of the disciplinary hearing before it took place and that the wording of the letter was based upon a template.[84]Accordingly, and for the reasons I have explained, I found that the dismissal was not unfair. Having reached that decision, it was not strictly necessary for me to go on and consider the questions of contributory fault and/or Polkey as those issues were only relevant if determining remedy as a result of an unfair dismissal finding. However, I would observe that even had I found the dismissal to have been unfair, I would have found that the claimant contributed to or caused his dismissal by his actions and that conduct was culpable and blameworthy, for all of the reasons that I have explained above and below. I would have found it to have been just and equitable to reduce both the basic and compensatory awards and I would have reduced both the basic and compensatory awards by one hundred percent.[85]As I have explained in the section on the law, the decision which I needed to reach for the wrongful dismissal claim, differed from that for the unfair dismissal claim. It was more finely balanced. I did consider carefully the reason given by the claimant for allowing the conduct to continue. I noted that there was no dispute that he had allowed the Section Leader to act in that way towards him and over an extended period of time. On balance, I found that the claimant had conducted himself in a way which did amount to a fundamental breach of his contract with the respondent in the situation where he was the GSM, for the reasons I have effectively already explained when addressing the fairness of the dismissal (but applying them to this different test). The respondent terminated his contract for that reason. They were entitled to do so without giving him notice. As a result, his claim for breach of contract did not succeed.
Summary
[86]For the reasons explained above, the claimant did not succeed in his claims. Employment Judge Phil Allen 24 January 2025