Mr J McBrearty v Lancashire Teaching Hospitals NHS Foundation Trust: 2403100/2017

EMPLOYMENT TRIBUNALS

Case No 2403100/2017

Between

Mr J McBreartyClaimant

Lancashire Teaching Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Holmes

In person for claimant

Mr Spencer (instructed by Solicitor) for respondent

Date 10 October 2017

JUDGMENT

ON APPLICATION TO AMEND It is the judgment of the Tribunal that the application by the claimant to amend his claims to include a complaint that his dismissal was automatically unfair by reason of his having made a protected disclosure is dismissed.

REASONS

[1]The Tribunal this morning has been considering an application by the claimant, Mr McBrearty, to amend his claims before the Tribunal which presently are of unfair dismissal only to include a complaint that his dismissal was unfair by reason of his having made a protected disclosure, and that the Tribunal should therefore allow him to proceed on that additional basis. The claim of unfair dismissal is presently listed before the Tribunal for two days on 7 and 8 November 2017, and the respondent appearing this morning through Mr Spencer has objected to the application. The Tribunal therefore has to decide at this stage whether to allow the claimant's application and then to consider the consequences that may arise if so.

[2]The way in which this matter comes before the Tribunal is as follows. The claimant originally presented his complaint of unfair dismissal to the Tribunal by a claim form received by the Tribunal on 9 June 2017. In that claim form the claimant had ticked, in terms of the claims that he was making, the one box on section 8, at section 8.1, which is the box in relation to unfair dismissal. That is the only box ticked on that page. In terms of the details of his claims, what he did was to attach to that document a five page document appended to it in which he set out the narrative, if I can use that term, of the claims that he wished to make. Those claims arise out of his dismissal on 10 March 2017 for an incident that occurred on the evening of 17 August 2016 when the claimant was working as a theatre support worker (a “TSW”) and had some interaction that evening with his superiors, which led to the respondent taking action against him for which he was ultimately dismissed.

[3]In the narrative document that he attached to the claim form, the claimant sets out his account of the events of that evening. He then goes on to make some reference to CCTV footage that he had viewed, which is in bold type; that is for the next 2½ pages or so of that document, and then he returns to ordinary font, and then goes through the process that he was taken through in relation to the investigation and his dismissal. He effectively makes criticisms of the respondent’s processes and the decision that was made to dismiss him, which he alleges was unfair in all the circumstances.

[4]In that document the claimant does, it is true to observe, say in the third paragraph on the first page: “For several months/years prior to this alleged incident on several occasions I raised concerns with management of undermanning levels in my area.”

[5]That is the only reference that the claimant makes to anything that could potentially be regarded as any form of protected disclosure, and he certainly does not, and does not contend today that he did, make any connection between raising of concerns and his subsequent dismissal. Certainly, in the claim form at section 8 the only box that he ticked was that for unfair dismissal.

[6]It is, however, also correct to observe and note, although the Tribunal appears not to have done, (in the sense that there was no follow up to it but that is not uncommon in the experience of the Employment Judge), where the claimant had in fact ticked the box at section 10 in relation to whether or not he wished any relevant regulator to be contacted in relation to any protected disclosure, which occasionally does indicate that a protected disclosure, or whistle-blowing claim, is being made when , in fact, on the face of this claim form there was not one. But he did tick that box, and it is only relevant to make that observation at this stage as well.

[7]The claim having been presented in that form, and accepted in that form, it was responded to and both the Tribunal and the respondent proceeded on the basis that it was only an unfair dismissal claim. Case Management Orders were made at the issue stage, and the hearing of the complaint was originally listed for yesterday, 5 October 2017. Subsequently, however, following communications from the respondent in terms of the number of witnesses, the Tribunal acceded to an application to vacate 5 October 2017, on the basis that two days would be needed, and it was re-listed for 7 and 8 November 2017.

[8]Consequently, the proceedings continued ordinarily and in the normal way until 19 September 2017, when the claimant sent an email to the Tribunal in which he raised the question for the first time of whistle-blowing and whether or not his claim included such a complaint, and he said in that email that he had been informed by Hempsons, solicitors for the respondent, that his claim did not include mention of whistle-blowing , yet he believed his copy of the ET1 form had got that claim shown on it. He attached to that email a copy of an email he had received from his brother who had been assisting him preparing the Tribunal paperwork (and indeed has attended with him today), which was in a different form to that which was received by the Tribunal in a number of respects in relation to details that were filled out in that claim form, but which were not in the claim form as received by the Tribunal. In particular, on page 6 of that document under section 8 whereas the original claim form had only the one tick this one has in fact some four ticks, because in the box for “I am owed” the claimant has ticked that box and also “arrears of pay”, although no application has been made in relation to that as an amendment, but more significantly, in relation to the box that is entitled “I am making another type of claim” the word “whistle-blowing” has been inserted.

[9]In that document the narrative that was originally attached to the previous claim form then appears or appears in part in box 8.2 , and is then continued in box

[15]I say “appears in part” because, whereas the original narrative contained with it in bold, as I have referred to earlier in this judgment, a complete section setting out the claimant's observations in relation to the CCTV footage that he had seen, those observations are not included in what I have termed the “new” claim form, and although reference is made to that CCTV footage, and indeed the reference as to the web address where it could be obtained is also contained in this document, that section, which was originally in bold, is omitted from this document, which then resumes with “you will hopefully see from the footage” which was part of the original submission to the Tribunal. So this is a document which is something of a hybrid between the original claim form and the new claim, but has been treated, and the claimant accepts, is indeed a proposed new claim form, and he accepts that in terms of the form that the Tribunal received, his claim in it was the original claim form, and he does not seek to argue today that his original claim form was in the format that is in the email attachment to his email of 19 September 2017. That gives rise to the issue of amendment, and indeed once the Tribunal received that email it was treated as an application to amend the claim to include a complaint of whistle-blowing as it was termed.10. The respondent was invited to make observations upon that application, which it did in an email of 25 September 2017, in which it raised objections, and consequently the matter has been listed today for the Tribunal to determine whether the application to amend should be granted or not. That basically is how we have come here today.

11. The claimant, appearing in person but assisted by his brother, has elaborated upon the application, and in the course of it has explained and indeed accepted how his original submission did not include a complaint of whistle-blowing, and the grounds upon which he wishes now to be permitted to add that claim.

12. In terms of the reason for the application, it arises, the claimant accepts, because of his omission and his mistake in not including that claim in the original claim form, and he thoroughly accepts responsibility for that.

13. In terms of the claims that he wishes to make by way of amendment, however, the Tribunal has this morning sought to elicit from the claimant more details of the claims he wishes to make by way of amendment. That is something the respondent did point out would be necessary, because one of the grounds of their objections was that there were insufficient particulars, to use lawyers’, but “details”, to use lay language, of the proposed amendment in any event, and they point out that the claimant in this new claim form did not specify what exactly his alleged whistle-blowing was, or what indeed he was complaining of arising out of it. Consequently this morning the Tribunal has discussed the matter in more detail with the claimant, and has sought to elicit from him more details of the claims that he wishes to make by way of amendment.

14. In the course of that discussion it has been pointed out to the claimant, and of course as a lay person one would not expect him to be aware of this and it is no criticism of him, that protected disclosure, or whistle-blowing as it is commonly known, is a particular form of claim that has particular legal definitions, and indeed can give rise to two different types of claims. One is a detriment claim under section 47B of the Employment Rights Act 1996, the other is a complaint of automatically unfair dismissal under section 103A of the same Act. It might be thought, and reasonably thought, by any lay person, that a dismissal was a detriment, and indeed it is hard to imagine circumstances in which it would not be a detriment, and most people would indeed regard it as such. However, the scheme of the legislation under section 47B of the 1996 Act is that where the detriment in question amounts to a dismissal, one cannot complain of protected disclosure detriment under section 47B of that Act; one has to complain of automatically unfair dismissal under section 103A of the Act, and that is why there is a distinction between detriment claims and dismissal claims. So the Tribunal sought to find out from the claimant this morning which of those two types of claim he wished to make and he clarified, as indeed the Employment Judge suspected was the case, that his potential complaint was that his dismissal was something that had arisen as a result of having made protected disclosures. So to that extent, if the amendment is to be allowed it will be in relation to dismissal for having made protected disclosure as opposed to any detriment claim. 15. Having established that, the next thing that the Tribunal sought to find out from Mr McBrearty is what protected disclosures he was alleging he had made. In terms of the law on protected disclosures, the definition of “protected disclosure” is in fact to be found in section 43B of the 1996 Act, and in terms of what a disclosure must be, there is no requirement that a protected disclosure has to be in writing. A protected disclosure can be made purely orally and , if satisfying the relevant tests, which I will come to in a moment, there is no problem with a person relying upon having made a purely oral protected disclosure.

[16]In terms of what a protected disclosure is, section 43B defines what one is, and what is a qualifying disclosure. Basically that section sets out the type of disclosure which will attract this protection, and the type of matter that has to be shown, or tended to be shown , in terms of the subject matter of such a disclosure. Section 43B lists there at subsections (a) to (f) the various types of disclosure which will potentially qualify for protection, and they are that:(a) A criminal offence has been committed or is being committed or is likely to be committed;

(b) That a person has failed or is failing or is likely to fail to comply with any legal obligation to which he is subject;

(d) That the health and safety of an individual has been or is being or is likely to be endangered;

(e) That the environment has been or is being or is likely to be damaged; or

(f) That information tending to show any matter falling within of the preceding paragraphs has been or is likely to be deliberately concealed; (f) being in effect disclosure about “cover ups” of the other types of matter referred to in the preceding paragraphs.

[17]Those are the necessary classes of disclosure, and of course in terms of whether or not a disclosure does amount to a protected disclosure there are other provisions as to who the disclosure is made to, and the circumstances and manner in which it is made. Also the reasonable belief in the disclosure on the part of the person making it is a potential issue. So there are a number of quite elaborate provisions in relation to protected disclosure before such a claim can be considered, and it was important that that is understood before the Tribunal goes any further.

[18]So, in terms of what the Tribunal is trying to find out from the claimant, it was to whom he disclosed what, and how that might amount to a protected disclosure.

[19]In terms of the most likely and most potentially relevant disclosures, from what the claimant told the Tribunal in relation to the events of 17 August 2016 and their immediate aftermath, it seems that if there was any potentially protected disclosure it would be purely oral , and it would be to potentially Wendy Hodge, Amy Hall, Andrew Shirtcliffe or Julie Cooper. Those are the four persons to whom any such protected disclosure may have been made, and in terms of the events of the evening in question the claimant's account, he accepts, is a little hazy in the sense that it was quite some time ago, and he has struggled to recollect precisely what was said on that occasion.

[20]In terms of what he was able to tell the Tribunal, all this arose in circumstances where he being a TSW on duty that evening was involved in the post operative care of a patient in circumstances where, put bluntly, he could have done with some help, and he believed that there would be another TSW available, David Bibby, to assist him in carrying out his duties at that time. He discovered in the course of that evening that that person had been allowed to go home in circumstances where the claimant clearly believed that that should not have happened, not least of all because it increased the workload expected of him in those circumstances. In terms of raising that with anybody, he says that he asked, as he put it, Wendy Hodge who was one of the first people he spoke to about this, where this other employee, David Bibby, was, and was told by Amy Hall that he had gone home.

[21]In terms of that and whether that potentially could be a protected disclosure, of course asking a question and getting an answer is not in itself potentially a protected disclosure. Whatever the answer is and whether one accepts it or not the question is whether or not there has been a disclosure, and asking a question is not ordinarily considered to be the conveying of information, an essential part of a protected disclosure.

[22]Thereafter, however, towards the end of the evening as the claimant was in fact getting ready to go home, he then spoke again to Wendy Hodge and at this point there may then have been a protected disclosure in terms of what he said to her then, he saying that he wanted to see her the following day and being told that he could not in fact do so, and at this point Andrew Shirtcliffe also becoming involved in relation to where David Bibby had been, and it may be, and I put it no higher than that, that it is at this point the claimant made what might amount to a protected disclosure in that he claims that he said that he would “take this higher” or something along those lines. Again, unfortunately the claimant is unable to be much more precise in terms of exactly what he said to Wendy Hodge or Andrew Shirtcliffe at this time, but I am prepared to accept for the purposes of this application that there may at that time a protected disclosure, albeit far more detail would be necessary for the claimant to establish precisely what it was.

[23]The following morning, and indeed this is what the claimant was saying when he said that he would “take it higher”, he asked to see Julie Cooper who would have been a more senior person to see, but she could not see him that morning but she did see him later that day after he had attended some union duties. In that conversation the claimant again says that he raised what may amount to a protected disclosure in relation to the events of the night before. By that time Julie Cooper, however, had made it clear that she had become aware of two complaints about the claimant's conduct the night before, and indeed had viewed the CCTV footage, and so it appears matters were underway, as it were, by that time, but in the course of this conversation again there may have been, and I put it no higher than that, a protected disclosure to the extent that the claimant may have raised issues in relation to David Bibby being allowed to go home. Again the terms are somewhat imprecise the best one can do at the moment is to find that there is potentially a protected disclosure at that point. Again its details are somewhat hazy.

[24]Thereafter the respondent on the claimant's account sought to suspend him on the following Friday, but in fact, as he would not attend without appropriate representation, that did not take place, but he was subsequently suspended by a letter dated 22 August 2016 which apparently he got on or about 24 August 2016. The disciplinary procedure was then undertaken, albeit not until January 2017. The claimant apparently raised a grievance in the meantime but nothing is said to have arisen in that.

[25]The other factor the claimant relies upon is that on or about 31 October 2016 he contacted the respondent’s grievance/whistle-blowing champion, I should say, Phoebe Hemmings, and sought to raise through her concerns in relation to staffing levels and the incident in question. That, of course, would postdate the claimant's suspension, and the instigation of the disciplinary procedures against him.

[26]In terms of those disciplinary procedures, ultimately they were carried out by Mr Price who I am told was the Chief of Pharmacy, and thereafter the appeal against the claimant’s dismissal which he instigated was dealt with by Mrs Naylor who was Director of Midwifery and Nursing, or something of that nature.

[27]In terms of the application, therefore, to the extent that the claimant has been able to elaborate upon the amendment he wishes to make, potentially he is relying upon one or more potential oral disclosures in relation, effectively to staffing levels and an implied perhaps, if not expressly stated concern, in relation to the health and safety of a patient in particular, but the respondent does make the point through Mr Spencer that equally it could be said that the claimant’s real “beef”, for want of a better word, and what he was disclosing was the impact upon his own working conditions arising out of the absence of any assistance because of the early departure of a potential colleague. The respondent points out that it would not necessarily be the case that the disclosures would tend to show what the claimant says they were tending to show, and indeed may not have been made in the public interest, but rather related to his own conditions of work.

[28]In terms of the principles to be applied in such an application, as Mr Spencer has rightly submitted, they derive from the long established case of Selkent Bus Company v Moore

[1996] ICR 836

, an Employment Appeal Tribunal decision, which has indeed largely been replicated in the Presidential Guidance on Case Management which was issued in 2014 and which, in respect of amendments at section 1 of that document, goes through many of the principles that are in fact derived from the Selkent Bus Company case.

[29]Ultimately, as the Selkent case itself says, and which has not changed despite the rules changing over the years, but the principles remaining the same, the Tribunal has a discretion whether to allow an amendment of this nature or not, and in terms of that discretion it must take into account the relevant factors which are not said to be exhaustive but amongst the main ones that are regularly to be considered are the nature of the amendment to be made, what exactly is it that is sought to be added, any relevant time limits, and the timing and manner of the application.

[30]As Selkent makes it clear as well, in weighing up these factors the Tribunal should have regard to the prejudice to the parties of either granting the amendment or of refusing it and of taking into account the interests of justice, which, of course, also includes the relevance of any time limits.

[31]A further factor that may be relevant, but the degree to which it is is a little controversial, is the question of the merits of any proposed amendment and the degree to which the Tribunal can consider at this stage the prospect of success of a claim if so amended.

[32]Basically all these factors have to be considered, and in considering them the first one it seems to me is the nature of the amendment. It is right to say that in seeking to amend in this way the claimant is, as the respondent submits, seeking to do more than make a minor amendment. This is not the correction of a clerical error, this is to add a new claim, a different jurisdiction, albeit one which I accept does arise out of the same facts if limited, as I find in fact the amendment would have to be, to the dismissal aspect. There is already a complaint of unfair dismissal; what the claimant is seeking to do is to add an additional basis in respect of that dismissal, and indeed a basis which would make it, if established, an automatically unfair dismissal which would prevent the Tribunal considering any other issues of fairness. That is clearly a substantial amendment but it is one, I accept, he has linked to the facts as already pleaded, because of course it all arises out of the dismissal and so that is a relevant factor.

[33]In terms of the time limits, of course, it is right that if presented as a new claim on, say, 18 September 2017, which is when the claimant first sought to add this claim, then given that the dismissal was in March 2017 any new claim on that basis would have been out of time by some three months or so, and that is a factor that I am entitled, indeed required, to have regard to in deciding whether or not to grant the application.

[34]In terms of the timing and the manner of the application, the timing is when the claim is fairly well advanced. It was not made until 19 September 2017 when the claim itself had been issued in June 2017, and indeed had already been listed for a hearing, so it is a relatively late application, but I do take into account the fact that this is still a relatively young claim in the sense that the dismissal was only in March 2017, and the Tribunal frequently deals with cases where a claim is considerably further advanced than this. That said, there is still a hearing date of two days listed in almost a month’s time, and that is obviously a very relevant factor.

[35]In terms of the manner of the application, it has been made in writing in terms of the email, but in terms of any further details the claimant did not until today really specify any more in terms of what he was seeking to amend and why, and in particular what it is he will allegedly relying upon in terms of the protected disclosures. The claimant has only really done that today and perhaps still needs further to refine that if the application is successful.

[36]In terms of those factors, clearly the facts that it is a late application and is a substantial one are relevant. The respondent’s position is that because the claim thus far had only been an unfair dismissal their only witnesses, as indeed one would expect in an unfair dismissal case, are to be the dismissing officer and the appeals officer, and of course in an unfair dismissal that is the norm. If the application to amend is permitted the respondent says that that would have to be revised, and the Tribunal accepts that is likely to be the case because the necessary witnesses will be those persons to whom the alleged protected disclosures were made. At the moment that is potentially some four people, it may be reduced to perhaps two, but it seems highly likely that if the application is permitted that at least two further witnesses will be required because they were the people to whom the alleged protected disclosures were made in the form of Wendy Hodge and Julie Cooper at the very least, and there may be others. So it certainly is the case that if the application is successful the respondent is likely to have to obtain witness evidence from those witnesses who are not presently likely to be called before the Tribunal.

[37]Also the respondent, of course, would be entitled to put in an amended response once the claimant had actually formally, and this would be required, set out in writing the precise details of the protected disclosures upon which he relies. That is inevitably going to lead to delay because there would not be sufficient time for the Tribunal to allow the respondent to respond to any such formal written amendment which would be directed and to prepare the witness evidence and still retain the hearing date of 7 November 2017.

[38]So whilst the claimant has suggested, I think, in correspondence that this as it were could be dealt with without disturbing the hearing date and without any further consequences, I cannot agree, and if the application does succeed it seems to me inevitable that there would have to be a postponement of the hearing and the respondents would have to consider getting evidence from additional witnesses. That is clearly a matter of prejudice to them and although one has to weigh up prejudice in matters it may not be irredeemable but it is clearly significant.

[39]On the other hand I have to weigh up what would be the effect of not allowing the amendment upon the claimant's case. This is a case where the claimant complains of unfair dismissal and has qualifying service. His unfair dismissal claim will be heard and is due to be heard in a month’s time. Not granting this amendment will not affect that at all. Sometimes these amendments are sought because, for example, there is an issue in relation to qualifying service because automatically unfair dismissal, as the claimant might know, does not require qualifying service and very often a claimant will seek to rely upon an automatically unfair reason for dismissal because they have to do so because they cannot claim ordinary unfair dismissal. That is not the case here. If this application does not succeed the claimant's complaint of ordinary unfair dismissal can proceed and will be heard. He will, it is right of course, not be able to argue that it was automatically unfair, and there are of course some consequences in terms of the compensation recoverable in terms of an automatically unfair dismissal as opposed to an ordinary unfair dismissal, but those are consequences for remedy not for liability and ultimately if the claim is not amended the claimant still has a perfectly sustainable claim for unfair dismissal. So the prejudice to him of not allowing this amendment is not as great as if the whole of the claim potentially depended upon it.

[40]The Tribunal is entitled, it considers, to have some regard to the value of the potential amendment in terms of the prospects of success for the claimant, and whilst that should not be determinative and is not going to be, it is nonetheless a relevant factor, I consider. The difficulty the claimant has is that even at this stage, and following today’s ,I hope , fairly extensive discussion, the details of his claims are still a little unclear and he would need to be far more precise, and indeed his witness evidence would have to be far more precise, as to what it is exactly is that he is alleging constitutes the protected disclosures, in terms of what exactly he said to whom, and why he contends that that would be within the ambit of protected disclosure. That would be the first hurdle that he would have to get over but ultimately, and accepting that the burden of proof would then shift, in terms of determining whether his dismissal was by reason of the protected disclosure, (and of course it must be principally: if not the only reason it must still be the principal reason and not just part of it which was in fact the way in which the claimant put it in his application today), that there must be this causal link between the protected disclosures if established, and the dismissal. One immediate feature of this case is that the dismissal was carried out by someone who on the face of it, was at arm’s length to the claimant. He is not the person, Mr Price of course, to whom the alleged protected disclosure was made. He was not involved in the direct day-to-day management of the claimant. There is nothing that has been put before the Tribunal so far that he may have been aware of the protected disclosures, save to the extent that it would have arisen out of the facts of the incident on 17 August 2017 that gave rise to the claim in the first place. In terms of the effect of the protected disclosure upon the mind of the person carrying out the dismissal, one immediate hurdle for the claimant is that there is no immediate apparent link between those two matters, and the same would also be true of any appeal, although I appreciate of course that the appeal effectively did not take place, certainly as far as the claimant was concerned, because he, for reasons of his own which are certainly understandable, did not attend.

[41]In addition to that, of course, the Tribunal would be looking in a claim for protected disclosure dismissal for that link, but it may well be the case, and not to anticipate the respondent’s response to any amended claim, that what emerges is that the respondent says that the claimant's dismissal as not by reason of having made any protected disclosure, but was by reason of the way in which he made it. Assuming for a moment then that the claimant’s contention that he was making protected disclosures on the night of 17 August 2017 is correct, the reason for his dismissal, of course, was his conduct on that occasion. It is not the function of this Tribunal to decide if that is right or wrong, but in terms of the reason the respondent gives the reason they clearly gave was his conduct and the way in which he behaved towards colleagues on that night.

[42]As is clear from a case called Bolton School v Evans

[2007] ICR 641

, (wrongly referred to as Bolton School v Khan in the oral judgment) making a protected disclosure does not give an employee carte blanche as to the way in which he does it. He does not have the protection of a protected disclosure if the manner in which he goes about that disclosure is itself an act of misconduct. So the mere fact that in the course of making a protected disclosure there is misconduct does not protect a claimant in those circumstances if in fact that would amount to misconduct, so there are, it seems to me, potentially a number of quite serious hurdles to the claimant's amended claim succeeding, if it were to be allowed.

[43]Weighing up, therefore, the potential benefit to him of allowing the amendment against the prejudice to the respondent, and the almost inevitable consequence of an adjournment of the hearing of 7 November 2017, with the increase in costs in having to have further witnesses once the claimant had further particularised his disclosures, which at the moment still remain a little vague, then weighing all those factors up, and with sympathy for the claimant, accepting it was entirely an error on his part that led to this position in the first place, the Tribunal does not accept his application to amend , and the claim will proceed unamended.

[44]The Tribunal proceeded to discuss further case managements issues, which are dealt with in a separate Order.

Conclusions

[45]Before reaching its decision the panel noted that the investigation had raised allegations about previous incidents with the claimant becoming verbally aggressive or threatening. The panel decided not to rely on that evidence as it was unproven and did not fall within the terms of reference. They did not consider these allegations in reaching the decision to dismiss. [On this the tribunal accepts the evidence of Mr Price, who gave clear and consistent evidence.]

[46]In reaching its decision to dismiss the panel:46.1 found on the balance of probability that the claimant had acted in an abusive and threatening manner towards the team leader WH. It accepted the evidence of the team leader WH and staff nurse AS, as supported by the CCTV footage, that the claimant was talking in a raised voice, pointing, at a close proximity to WH and AS, getting in their personal space;

46.2 accepted the evidence of AS that the claimant had been swearing;

46.3 acknowledged that the claimant had not physically assaulted either WH or AS;

46.4 having viewed the CCTV footage accepted the evidence of AS and WH that the claimant had been confrontational, intimidating and threatening;

46.5 considered whether the conduct amounted to gross misconduct. It decided that the conduct was gross misconduct, not general misconduct because:46.5.1 the claimant kept going back to WH and continued with his threatening behaviour, his arm waving, pointing. On this the panel accepted the evidence of WH and AS, as supported by the CCTV footage;

46.5.2 the impact of the claimant’s behaviour on WH had continued until the disciplinary hearing. The panel noted that:46.5.2.1 WH had said that she did not feel threatened at the time of the incident;

46.5.2.2 AS had reported that WH had been visibly upset and shaky during the confrontation with the claimant;

46.5.2.3 WH had felt so upset that she had locked herself in her car and called colleagues for support immediately following the incident;

46.5.2.4 at the disciplinary hearing WH was visibly shaking and remained emotionally affected by the incident;

46.6 did take into account the conduct of the claimant at the disciplinary hearings;

46.7 considered the appropriate penalty, including the imposition of a final warning;

46.8 took into account what it referred to as “limited mitigating circumstances”, that is, the claimant’s length of service and clean disciplinary record;

46.9 noted that in the letter from the claimant to Theatre Sister JC dated 19 August 2016 (see paragraph 30 above) the claimant had recognised that his behaviour was so serious that it may result in his suspension from the workplace;

46.10 decided that dismissal was the appropriate penalty because the panel held the view that there was a substantial risk that the conduct would be repeated bearing in mind that the claimant:46.10.1 had not recognised the impact of his behaviour on others;

46.10.2 had not accepted during the disciplinary hearings that what he had done was wrong;

46.10.3 had expressed no remorse or apology for his actions;

46.10.4 had behaved in an aggressive and intimidating manner during the disciplinary hearings, had shouted, used inappropriate language to the panel and had continued to interrupt and talk over others when instructed not to do so.

[47]Mr Price confirmed the decision to dismiss by letter dated 10 March 2017 (page 340). The letter set out in summary the reasons for the dismissal and notified the claimant that he was summarily dismissed, his last day of employment being 10 March 2017. The claimant was advised of his right of appeal. The letter informed the claimant that he was not permitted to enter Trust premises except for the purposes of receiving care as a patient or to attend any appeal.

[48]The claimant exercised the right of appeal.

[49]Despite the terms of the dismissal letter the claimant did enter on to Trust premises and Trust security were called on a number of occasions.

[50]The respondent decided to hold the appeal hearing off the main Trust hospital site, at Preston business centre and that security would be present at the hearing.

[51]The claimant was invited to the appeal hearing on 2 May 2017 to commence at 10.00am. He was advised of his right of representation. He exercised that right. He was not informed that security would be in attendance at the appeal hearing.

[52]The Appeal Panel consisted of Karen Swindley, Workforce and Education director, Carol Spencer, Strategy and Development director, and Gail Naylor, Nursing and Midwifery director, who attended as chair of the panel.

[53]The Appeal Panel was supported by Rachel O'Brien, strategic workforce business partner.

[54]The claimant attended for the Appeal Hearing on 2 May 2017, accompanied by his trade union representative.

[55]Prior to the appeal hearing starting, Rachel O'Brien reported to the Appeal Panel that the claimant had taken exception to the presence of security, that she and the claimant's representative had tried to persuade the claimant to move to a non-public area as the claimant was behaving in a loud manner in an area where patients and members of the public were present. The claimant had refused to do so. The panel noted that the claimant's representative had raised no objection to the presence of security and the panel remained of the view that the presence of security on site was reasonable. Rachel O'Brien was telephoned by the claimant's representative who informed her that the claimant wanted an e-mail explaining why there were security officers present. This conversation was on speakerphone and Mrs Naylor heard the claimant in the background being verbally abusive. [On this the tribunal accepts the evidence of Mrs Naylor.]

[56]An e-mail was sent to the claimant (page 465) confirming that the reason for security presence at the appeal hearing was for the protection of panel members and the public/patients/witnesses given the reason for dismissal and the claimant’s observed pattern of behaviour over recent weeks since the disciplinary hearing.

[57]The claimant then asked that the e-mail be signed by the chair of the Appeal Panel. There were difficulties in printing off the e-mail but by the time that this was done Rachel O'Brien was advised by the claimant's representative that the claimant had left the site to go to the police station. The representative was given the opportunity to attend the Appeal hearing on behalf the claimant but the representative refused that offer. As a result Rachel O'Brien e-mailed the claimant to inform him that the appeal would be heard in his absence.

[58]The appeal hearing commenced at 11.00am, in the absence of the claimant. The claimant arrived 10 minutes after the start and was declined entrance by security. The appeal panel was unaware of that until after the appeal hearing had finished. Nobody came in to the appeal hearing to inform the panel that the claimant had arrived. [On this the tribunal accepts the evidence of Ms Naylor]

[59]The appeal panel considered every ground of the claimant's appeal. Gareth Price and Katherine Downey were present at the appeal hearing to present the Management case and to answer questions. The Appeal panel viewed the CCTV footage which had been considered by the disciplinary panel.

[60]The panel noted that the claimant argued that there was no evidence to support the finding that he had been abusive and threatening towards WH. The Appeal panel questioned Gareth Price on the evidence he heard at how the disciplinary panel reached the conclusion that the claimant had committed the act of misconduct.

[61]The appeal panel found that:61.1 the issues raised by the claimant in relation to his subject access request, in particular in relation to the complete CCTV footage, was outside the appeal process;

61.2 the deletion by the Trust of parts of the CCTV footage for 17 August 2016 was in accordance with its policy. The CCTV footage in relation to the incident was made available to the claimant and the deleted footage was not relevant;

61.3 the evidence provided by the witnesses and corroborated by the CCTV footage was sufficient to uphold the allegation that the claimant had behaved in a verbally abusive and threatening manner on 17 August 2016. There was no reason to doubt the credibility of the evidence;

61.4 the evidence used by the disciplinary panel was that of the witnesses who were present at the time of the incident, along with the CCTV footage. The disciplinary panel had confirmed that it had not used the evidence from those witnesses who were not present at the time of the incident

61.5 the CCTV footage did not match the claimant's assertion that he was trying to leave and that WH and AS kept the interaction going;

61.6 the appeal panel were satisfied that the conclusions of the disciplinary panel were reasonable based on the evidence;

61.7 there was no evidence that WH had been coerced into making a complaint;

61.8 it was reasonable for the disciplinary panel to consider the claimant's grievance as part of the disciplinary case;

61.9 the claimant was fully aware of the allegation and the terms of reference;

61.10 the delays with the investigation were noted. There was no evidence to indicate that the evidence presented by the witnesses or any other evidence provided was affected by that delay;

61.11 there was no evidence that the order in which the witnesses had been interviewed during the course of the investigation affected the fairness of the investigation and/or disciplinary procedure;

61.12 in deciding whether the penalty, dismissal, was too harsh, the appeal panel was satisfied that:61.12.1 the witnesses had been emotionally affected by the claimant's behaviour and at no time had the claimant offered an apology;

61.12.2 the original disciplinary panel had considered the claimant’s length of service and previous clean disciplinary record in mitigation and considered other sanctions to dismissal. However, the absence of remorse was a serious concern and there was no assurance that the behaviour would not be repeated in the future;

61.12.3 In the circumstances the employment relationship had irreparably broken down and the decision to summarily dismiss the claimant was reasonable and proportionate in circumstances;

[62]The appeal panel reached the decision to uphold the claimant's dismissal and informed the claimant in writing by letter dated 9 May 2017 (page 488).

[63]The claimant did not in his statement of case or grounds of appeal identify any relevant witness to the incident who had not been interviewed as part of the investigation and/or disciplinary process.

[64]The respondent has a disciplinary procedure, which includes the following: 3. Principles No disciplinary action will be taken against a trade union representative until the circumstances of the case have been discussed with a senior trade union representative or full-time official 5. Duties and responsibilities Employees Are responsible for  ensuring they understand the rules relating to conduct  make themselves available either in relation to an ongoing investigation, if appropriate, a formal hearing whether in work or when suspended  fully complying with the terms of any suspension  Case Managers Are responsible for  Establishing the need and overseeing the procedure for an investigation into potential misconduct  Appointing an investigating officer and Chair of any Disciplinary panel  Receiving the investigation report and with the senior HR manager determining any further action within one week of receipt of the report  Advising the employee in writing at any further action Investigating officers Are responsible for  Obtaining all the relevant information and taking all reasonable steps to determine the validity and accuracy of the complaint/allegation made against the employee, in accordance with the Trust's guidelines for conducting investigations (appendix C)  Adhering to the timetables laid down in this procedure  Preparing a report for submission to the Case manager 10. Suspension. Suspensions should not be undertaken lightly and its impact on the individual should not be underestimated… Suspension is not disciplinary action but a holding measure whilst an investigation is carried out. Consideration needs to be given firstly to the alternatives, which may be available… Suspension should be considered when it is:  necessary to protect the care of patients or service users  safeguard the employee against further allegations or  protect the integrity of the investigation In such cases where it is necessary to suspend a representative of a recognised trade union/staffing organisation, the circumstances must be reported to the fulltime officer immediately. Every effort will be made to conduct and conclude the investigation within a time limit of no more than six weeks. If suspension from duty lasts for 28 days or more and no disciplinary charges have been made and communicated in writing, the employee shall have the right to appeal to the Chief Executive against continuation of suspension. The Case Manager will update the employee on any continuation of the suspension on a monthly basis together with the reasons for this. 12. Formal procedure 12.2 Disciplinary hearing A formal disciplinary hearing will not be convened until the Case manager/investigating officer is satisfied that, following a thorough investigation, there is a prima facie case to be answered 13. Disciplinary action13.1 First written warning A first breach of a general disciplinary rule should normally initially result in counselling. In cases of breaches of general disciplinary rules serious enough to require disciplinary action or where counselling has failed to secure the required improvement, formal disciplinary action may need to be taken which may result in a first written warning.

13.2 Final written warning A repeated breach of the general disciplinary rules may result in a final written warning, where there is a current first written warning in force. Alternatively, a first and final written warning may be issued where an offence is serious enough not to be tolerated a second time, but does not justify dismissal.

13.3 Dismissal or other penalty Where an employee's conduct still fails to improve or where an employee is found guilty of gross misconduct, dismissal or some other action such as downgrading or transferring with or without downgrading may be taken. Appendix A Disciplinary rules 1. Introduction Disciplinary action may only be taken… for any breach of the following rules. The disciplinary rules are divided into two main groups:- General disciplinary rules Rules applicable in cases of gross misconduct The rules listed below, whilst not exhaustive are an indication of the rules in relation to general and gross misconduct, but will depend on the severity and/or circumstances of each breach. 2. General disciplinary rules the following deviations from the general standards of conduct and performance, if recurrent, could result in the dismissal, which would follow the full disciplinary procedure ….. 2.2 insubordination, or verbal assault, as an employee or on the Trust premises 2.5 personal misconduct of a nature adjudged not sufficiently serious to affect an employee's position at work during the course of his/her employment 3. Rules applicable in cases of gross misconduct An employee who commits any of the following offences will be dismissed unless the employee satisfies management that there are mitigating circumstances:- …. 3.9 Any physical or indecent assault or deliberate act of harassment, including acts motivated by gender, race, religion, sexual orientation or disability …… 3.10 Verbal or physical assault of staff, patients or visitors or fighting 3.19 The perpetration of any act of gross misconduct and/or clinical incompetence 3.25 Personal misconduct of a nature adjudged sufficiently serious to affect an employee's position at work during the course of his/her employment It is unlikely that any set of disciplinary rules could cover all the circumstances which may lead to disciplinary action… It is emphasised that there could be other offences/situations not specified in this document which involve a breakdown of trust or confidence between the individual and the employer and which may result in disciplinary action including dismissal. Additional Facts relating to Contributory Conduct and Breach of Contract

claim

[65]On 17 August 2016 the claimant acted in a threatening and intimidatory manner towards his manager. The claimant raised his voice to his line manager, invaded her personal space, pointed at her and another colleague, acted in an aggressive manner, was told to stop pointing, told to calm down, but just carried on. [On this the tribunal rejects the evidence of the claimant, which is wholly inconsistent with the evidence as set out in the investigation report and the CCTV footage. The tribunal accepts the notes of interviews as an accurate record of the evidence of the respondent’s witnesses, in particular, WH and AS. The tribunal notes that the evidence of those witnesses was tested by cross-examination of those witnesses during the disciplinary process.]

[66]The claimant, a trade union representative for a number of years, has a good knowledge of the disciplinary procedure and rules. He was fully aware that his behaviour on 17 August 2016 towards his line manager was unacceptable and was seriousness enough to warrant suspension.

[67]At the disciplinary hearing on 21 February 2016 the claimant was represented by a trade union representative. He and his representative were given the opportunity to cross-examine the witnesses. The claimant refused to leave the room when asked to do so, when his team leader WH was giving evidence and it was explained that it was this witness who did not want to give evidence in the presence of the claimant. WH agreed to give evidence with the claimant in attendance provided that any questions were raised by his trade union representative. The claimant interrupted while his own representative was asking questions, making accusations that WH’s companion was prompting WH, who became upset by the claimant’s interruption and left the room. The claimant was again told not to interrupt, to let his representative do the talking. The claimant again interrupted, requiring a further interruption to the hearing.

[68]The disciplinary hearing was reconvened on 2 March 2017. The claimant conducted himself in a rude and aggressive manner, raising his voice, challenging the right of the Chair of the Panel to conduct the hearing to his requirements. The claimant interrupted and talked over other people in the hearing. He refused to accept direction from the Chair of the Panel, for example, stating that he did not agree with an adjournment of the hearing. When Mr Price, the Chair of the disciplinary panel, told that claimant that he may need to ask the claimant to leave the room if he continued in this way the claimant responded “How are you going to get me out of this room? How are you going to remove me?” The claimant was advised that his behaviour was seen as threatening but the claimant continued with his interruptions and objections. The claimant began shouting and pointing at the panel members, banging on the table in front of him, refusing to adhere to repeated requests to conduct himself in an appropriate manner at the hearing.

[69]Once more the disciplinary hearing was not completed. The claimant refused to cooperate in agreeing a further date, asserting that what he was doing an a particular day was “ none of your business.” A date was fixed and the claimant given reasonable notice of it

[70]The disciplinary hearing was reconvened on 9 March 2017. The claimant tried to take control of the meeting, telling the panel that he had another appointment that afternoon and therefore the disciplinary hearing could not finish that day. The claimant requested the original copy of the letter he had sent requesting the complete CCTV footage. Kathryn Downey, HR support to the panel, informed the claimant that a copy of the letter was within the statement of case and that the panel was making every effort to hear the claimant's case that day. The claimant then informed Kathryn Downey “ it is the man that makes the decisions”. Ms Downey informed the claimant that as a member of the panel she was within her right to speak and would be grateful if the claimant refrained from closing her down when she was speaking. The claimant responded by stating “I will close you down every day young lady.” The claimant then stood up to leave the meeting and Ms Downey informed the claimant that she was making one last request. The claimant began to shout over Ms Downey stating that he was not going to do anything until the letter was in front of him. An adjournment was required. Later the claimant repeated the points he was making and was asked by the panel not to be repetitive. The claimant responded by raising his voice, pointing at the panel using inappropriate language. For example the claimant said “ when it goes to ET (employment tribunal) you will get your arses wiped”. When Ms Downey asked the claimant not to point at her he replied “if you don't like it I don't care I do that. There is no ray gun coming out”. When the chair of the panel sought to direct the conversation to the relevant points the claimant repeatedly said “You are not going to shut me up.” At one point he started shouting at Mr Price “ I am going to make this point young man and if you want to shut me up you just try.” Later the claimant continued “You can’t stop me I will keep talking you just watch me. You don’t talk to me like that you don’t tell me what to do.”

[71]At one point in the disciplinary hearing Ms Downey made a point to which the claimant replied “That’s bullshit” The minutes of the meeting record the following exchange after that: Ms Downey: John The claimant ; “ Don’t you get upset about that young lady” Mr Price: “John please do not swear The claimant: “What are you going to do about it? Mr Price: Please do not swear The claimant: That is not swearing The claimant’s trade union representative “Whether you think it swearing or not please continue John. Don’t lose yourself in this. [The tribunal accepts that these minutes accurately reflect what was said in the meetings. The claimant has adduced no satisfactory evidence to challenge their accuracy.]

[72]The claimant continued to conduct himself in an unacceptable, aggressive manner. The claimant then informed the panel that he was leaving as he had an appointment. Mr Price informed the claimant that the panel encouraged him to stay so that the disciplinary meeting could conclude with him present. The claimant responded “You can encourage me all you like young man ... I don't care. Are you going to stop me ... I don't think so.” Mr Price advised the claimant that the panel may continue the meeting in his absence. The claimant stated “Continue all you like - makes no difference to me. When you are in court we will see how you continue. I am already going to the police and I will sort you out before.” Mr Price interpreted this as the claimant trying to threaten and intimidate him.

The Law

[73]An employer must show the reason for dismissal, or if more than one, the principal reason, and that the reason fell within one of the categories of a potentially fair reason set out in Section 98(1) and (2) Employment Rights Act 1996 (“ERA 1996”). It is for the employer to show the reason for dismissal and that it was a potentially fair one, that is, that it was capable of justifying the dismissal. The employer does not have to prove that it did justify the dismissal because that is a matter for the tribunal to assess when considering the question of reasonableness.

[74]Misconduct is a potentially fair reason for dismissal. British Home Stores Ltd v Burchell

[1980] ICR 303

provides useful guidelines in determining this question. It sets out a three-fold test stating that the employer must show that:  he genuinely believed that the conduct complained of had taken place;  he had in mind reasonable grounds upon which to sustain that belief; and  At the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances. The Tribunal notes and takes regard of the fact that the guidelines set out in Burchell are guidelines only and that the burden of proof on the question of reasonableness does not fall upon the employer under this head, and is a question for the Tribunal to decide, when appropriate, in determining the question of reasonableness under Section 98(4) ERA 1996, under which the burden of proof is neutral. Boys and Girls Welfare Society v McDonald

[1997] ICR 693

. as confirmed in West London Mental Health Trust v Sarkar

[2009] IRLR 512

, which was not disturbed on this point by the Court of Appeal. As HHJ Peter Clark and the Employment Appeal Tribunal in Sheffield Health & Social Care NHS Foundation Trust v Crabtree

UKEAT/0331/09

observed in paragraph 13, British Home Stores Ltd v Burchell was decided before the alteration of the burden of proof effected by section 6 of the Employment Act 1980. At paragraph 14 the Employment Appeal Tribunal held: “The first question raised by Arnold J: did the employer have a genuine belief in the misconduct alleged” goes to the reason for dismissal. The burden of showing a potentially fair reason rests with the employer.” At paragraph 15 the EAT held: “However, the second and third questions, reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under section 98(4) Employment Rights Act 1996 and there the burden is neutral.”

[75]Once the employer has shown a potentially fair reason for dismissing, the Tribunal must decide whether that employer acted reasonably or unreasonably in dismissing for that reason. The burden of proof is neutral. It is for the Tribunal to decide. Section 98(4) ERA 1996 states:- “The determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend upon 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 that question shall be determined in accordance with equity and the substantial merits of the case”. The test of whether or not the employer acted reasonably is an objective one, that is, Tribunals must as industrial juries determine the way in which a reasonable employer in those circumstances in that line of business would have behaved. There is a band of reasonable responses. The Tribunal must determine whether the employer’s action fell within a band of reasonable responses. Iceland Frozen Foods Limited v Jones

[1983] ICR 17

. (Approved by the Court of Appeal in Post Office v Foley, HSBC Bank plc (formerly Midland Bank plc) v Madden

[2000] IRLR 827

. The range of reasonable responses test (the need for the tribunal to apply the objective standards of the reasonable employer) must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

. The tribunal bears that in mind and applies that test in considering all questions concerning the fairness of the dismissal. In determining the reasonableness of an employer’s decision to dismiss, the tribunal may only take account of those facts (or beliefs) which were known to the employer at the time of the dismissal.

[76]The reasonable investigation stage has been subjected to refinement in two judgments, which are relevant here. First, A v B

[2003] IRLR 405

, a judgment of Elias J (President) and members, indicates that there is to be a standard of investigation which befits the gravity of the matter charged. If what is sought to be sanctioned is a warning, the standard of investigation will be lower than where dismissal is concerned. Elias LJ, now in the Court of Appeal, reinforced that position in Salford v Roldan

[2010] EWCA Civ 522

, indicating that where the circumstances of a dismissal would create serious consequences for the future of an employee, such as deportation, particular care must be given to the investigation.

[77]Whether or not the employer acts fairly depends on whether in all the circumstances a fair procedure, falling within the range of reasonable responses, was adopted. The form and adequacy of a disciplinary enquiry depends on the circumstances of the case. What is important is that, in the interests of natural justice, the employee can be given a chance to state his or her case in detail with sufficient knowledge of what is being said against him or her to be able to do so properly. Bentley Engineering Co Limited Mistry

[1979] ICR 2000

[78]In deciding whether the dismissal is fair the Tribunal must consider whether summary dismissal falls within the band of reasonable responses, taking into account all the surrounding circumstances, the employer’s practice, the contract of employment and any definitions of gross misconduct contained therein, the knowledge of the employee, the seriousness of the offence. What conduct amounts to gross misconduct will depend on the facts of the individual case. Generally gross misconduct is conduct which fundamentally undermines the employment contract, is a deliberate and wilful contradiction of the contractual terms or amounts to gross negligence.

[79]The tribunal has considered the current ACAS Code of Practice and the six steps which an employer should normally follow when handling disciplinary issues, namely:  Establish the facts of each case;  Inform the employee of the problem;  Hold a meeting with the employee to discuss the problem;  Allow the employee to be accompanied at the meeting  Decide on appropriate action  Provide employees with an opportunity to appeal. The tribunal notes that the Code states that it is important to deal with issues fairly including dealing with issues promptly and without unreasonable delay, acting consistently carrying out any necessary investigations, and giving the employee the opportunity to state their case before any decisions are made.

[80]The tribunal has considered and applied Sections 118-124 Employment Rights Act 1996. We note in particular:-a. Section 122(2) under which a tribunal may reduce a basic award where the employee’s conduct before dismissal makes a reduction just and equitable;

b. Section 123(1) whereby the tribunal is directed to make a compensatory award in such an amount as it considers just and equitable in all the circumstances;

c. Section 123(6) whereby a tribunal should reduce the compensatory award by such proportion as it considers just and equitable where the dismissal was to any extent caused or contributed to by any action of the claimant.

[81]In Nelson v BBC (No2)

[1979] IRLR 346

the Court of Appeal said that three factors must be satisfied if the tribunal are to find contributory conduct:-  the relevant action must be culpable and blameworthy  it must have actually caused or contributed to the dismissal  it must be just and equitable to reduce the award by the proportion specified

[82]In Gibson v British Transport Docks Board

[1982] IRLR 228

Browne-Wilkinson stated that what has to be shown is that the conduct of the claimant contributed to the dismissal. If the claimant has been guilty of improper conduct which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the tribunal to find that the conduct contributed to the dismissal.

[83]The tribunal has considered and where appropriate applied the authorities referred to in submissions. Determination of the Issues (These include, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence) 84. .The claimant was dismissed and the effective date of termination was 10 March 2017.

[85]The tribunal has considered the reason for dismissal. The tribunal does not accept the assertion that the respondent reacted in a heavy-handed and disproportionate manner to the incident on 17 August 2016, does not accept that there was very little evidence to support the suspension of the claimant, does not accept that the decision to have the claimant escorted off the premises by porters unnecessarily inflamed the situation. A genuine complaint about the conduct of the claimant on 17 August 2016 was made by WH. There is no satisfactory evidence to support the assertion that WH was coerced in to making that complaint. It was a serious complaint by a line manager that someone in her direct line of authority had been confrontational, verbally inappropriate and that she had found what she described as a confrontation stressful and intimidating. (See paragraph 13 above). The respondent acted reasonably in deciding to carry out an investigation of that complaint. The suspension was a reasonable step to take pending that investigation. It was not heavy- handed or disproportionate. The decision to have the claimant escorted off the premises by porters, when he arrived at work on 22 August 2016 in breach of the suspension was not heavy- handed or disproportionate in the circumstances, does not suggest that the decision to dismiss the claimant had already been made. The claimant had acted badly on 19 August 2016, refusing to attend meetings, refusing to leave the clinical area when requested to do so, telephoning the police to make allegations of harassment when he knew full well that he was being called to these meetings to face the disciplinary action he was expecting because of the incident on 17 August 2016. The claimant fully understood that the meetings he persistently refused to attend on 19 August 2016 were related to the disciplinary action he was expecting - hence the reason for him refusing to attend without a full time official in attendance.

[86]The fact that the respondent had not spoken to a full-time trade union official before suspending the claimant does not support the assertion that the reaction to the complaint of WH was disproportionate, or that dismissal was not for the reason stated by the respondent. The Disciplinary procedure states that: No disciplinary action will be taken against a trade union representative until the circumstances of the case have been discussed with a senior trade union representative or full-time official. However, suspension is expressly stated not to be disciplinary action. In relation to suspension the procedure does not expressly state that the decision to suspend will not be taken until the circumstances of the case have been discussed with the full-time official. The procedure states: In such cases where it is necessary to suspend a representative of a recognised trade union/staffing organisation, the circumstances must be reported to the fulltime officer immediately. It is clear that the circumstances were reported to the claimant’s trade union as it is his evidence that he was notified by his trade union of the suspension by a telephone call on 19 August 2016.

[87]The claimant has made much of the failure of the Case Manager, Miss Dawson, to give evidence and/or to set out the reasoning behind her decision to progress the matter to a disciplinary charge. However, the claimant has adduced no satisfactory evidence to support any assertion that the decision to progress to a disciplinary charge was disproportionate. In any event, the reasoning of any case manager or investigating officer to progress to a disciplinary charge is tested during the disciplinary hearing. It is for the disciplinary panel to decide whether there is sufficient evidence to support the charge as laid against the claimant. That is what happened here. The decision to dismiss was taken by the disciplinary panel, not Miss Dawson. There is no merit in the assertion that the failure of Miss Dawson to give evidence and/or to set out the reasoning behind her decision indicates that the reason for dismissal was not as stated by the disciplinary panel and/or that the evidence before the disciplinary panel was in some way engineered and/or escalated to justify the decision to dismiss.

[88]The fact that the respondent quickly identified the misconduct as potentially an act of gross misconduct which may justify dismissal, the fact that the invitation to the disciplinary hearing cited the description of gross misconduct first, does not support the assertion that the decision had been made to dismiss the claimant from the outset for some other reason, does not support the assertion that the respondent had in some way exaggerated the serious nature of the alleged conduct to engineer the claimant’s dismissal. The alleged conduct was serious. WH’s complaint of intimidating behaviour by someone under her line of authority was a serious matter. There is no satisfactory evidence to support the assertion that the disciplinary panel were in some way manoeuvred in to a decision to dismiss by the identification of the incident as potentially amounting to gross misconduct. There is no satisfactory evidence to support the assertion that the disciplinary panel were swayed from a balanced and dispassionate decision by the order of wording in the invitation to the disciplinary hearing and/or by the way in which the case papers had been prepared. The suggestion that the disciplinary panel were being swayed and/or unduly influenced by unnamed players behind the scenes is totally without merit, wholly unsupported by any satisfactory evidence.

[89]Having considered all the evidence the tribunal accepts the evidence of Mr Price and finds that the reason for the dismissal was conduct in that the respondent held the honest and genuine belief that the claimant had, on 17 August 2016, behaved in an abusive and threatening way towards another member of the theatre team, his Team Leader WH. The tribunal accepts the evidence of Mr Price and finds that, in reaching the decision, the disciplinary panel relied solely on the evidence relating to the conduct of the claimant during the incident on 17 August 2016, as demonstrated on the available CCTV footage. The tribunal does not accept the claimant’s assertion that the respondent, as a result of the claimant’s behaviour after the incident, in some way escalated the severity of the claimant’s conduct on 17 August 2016 to engineer a dismissal for a different reason. There is no satisfactory evidence to support such an assertion.

[90]Conduct is a potentially fair reason for dismissal within s98(1) and

(2) Employment Rights Act 1996.

[91]The tribunal has considered all the circumstances of this case, including those matters referred to in s98(4) Employment Rights Act 1996, to determine whether, in all those circumstances, the dismissal of the claimant for the reason stated was fair or unfair. In deciding whether the decision to dismiss was fair or unfair it is not for the tribunal to substitute its view for that of the employer. The question is did the respondent act fairly within the band of reasonable responses of a reasonable employer in concluding that this employee was guilty of gross misconduct and dismissing him.

[92]Having considered whether the respondent carried out a reasonable investigation of the alleged misconduct, the tribunal notes in particular as follows:92.1 An independent investigator was appointed;

92.2 the respondent interviewed all relevant witnesses. The claimant did not, either during the investigation and disciplinary process, or before this tribunal, provide the name and/or identity of any witness to the incident who was not interviewed;

92.3 Notes were taken of all interviews;

92.4 the claimant was interviewed during the investigation and given the opportunity to comment on the available evidence;

92.5 the failure of the respondent to provide a copy of the CCTV footage before and after the incident on 17 August 2016 did not make the investigation unfair. The allegation related to the exchange between the claimant and WH and AS in the time between the claimant leaving the changing room and exiting the building, which took approximately 7 minutes. The entire exchange was captured on the CCTV footage, which formed part of the evidence during the disciplinary process. The tribunal rejects the assertion that the entire CCTV footage for that evening may have brought additional relevant evidence to bear. The charge of misconduct related to the 7 minute period captured on the retained CCTV footage. The claimant failed to establish either during the investigation or disciplinary procedure or before this tribunal that there was any relevant additional exchange and/or conduct between himself and the others before or after the 7 minute period captured on the CCTV;

92.6 evidence was heard at the disciplinary hearings when further information was obtained. The claimant and his trade union representative were able to ask questions of the witnesses, were given full opportunity to comment on all the evidence before the disciplinary panel; In all the circumstances the tribunal finds that the respondent did conduct a reasonable investigation of the alleged misconduct. The standard of investigation did befit the gravity of the matter charged, that is, a charge of gross misconduct against a long serving employee with a clean disciplinary record.

[93]Having considered whether, having conducted that investigation, the respondent had reasonable grounds to support its belief the tribunal notes in particular as follows:93.1 there was no finding by the disciplinary panel as to the exact words used by the claimant in his exchange with WH and AS during the incident on 17 August 2016;

93.2 the evidence before the panel of WH and AS, as stated in their initial witness statements, was clear. Although they could not recall the exact words used by the claimant, they were clear that the claimant’s language was inappropriate, he was gesturing with his hands, he was agitated, confrontational, he was shouting, not providing any opportunity for a response. WH found the incident stressful and intimidating. AS also found the incident stressful. Both remarked that they tried to diffuse the situation but the claimant persisted;

93.3 there was nothing to suggest that either WH or AS were lying or exaggerating their evidence. WH acknowledged that she had had a long-standing friendship of over 20 years with the claimant – the claimant agreed. AS had commented that he liked the claimant, that he had a kind heart;

93.4 At his investigation interview (53) AS said that the claimant was swearing, that his body proximity was close, that WH was upset and saying “I want to go home”, that the claimant had “ crossed the line.” (see paragraph 31 above.) The respondent was reasonable relying on that evidence. AS had not mentioned swearing in his previous written statement but the respondent was reasonable in relying on AS’s evidence, viewed as a whole. There was nothing before the disciplinary panel to suggest that AS was lying or was now exaggerating the severity of the claimant’s behaviour during the course of the incident;

93.5 The claimant denied the allegations. In deciding whether to accept the evidence of WH and AS the disciplinary panel was reasonable in taking into account the conduct of the claimant at the disciplinary hearing, when the panel formed the honest and genuine belief that the claimant had acted in an aggressive manner, had used inappropriate language. The fact that the panel took into account, when deciding the conflict of evidence, their belief that the behaviour of the claimant during the disciplinary hearings was consistent with the alleged behaviour on 17 August 2016, was reasonable;

93.6 The panel found that the evidence of WH and AS was supported by the CCTV evidence. The CCTV footage clearly shows that the claimant was agitated, was gesticulating, was pointing, invading the personal space of WH, and kept turning to leave but then turning back, walking back directly in front of WH and carrying on with his pointing. It was reasonable for the respondent to find that the CCTV footage supported the evidence of WH and AS. Having considered all the circumstances the tribunal finds that there were reasonable grounds to support the finding without the need for a word by word account of what had been said during the exchange, what exact swear words had been used. There may have been minor inconsistencies in the evidence of the witnesses but the witness evidence together with the CCTV footage provided reasonable grounds for the belief.

[94]Having considered the procedure adopted by the respondent the tribunal notes and find that:94.1 the specific allegation of misconduct was put to the claimant who was given full opportunity to state his case both during the investigation and at the disciplinary hearings;

94.2 the respondent followed a fair disciplinary procedure in that the claimant was represented at the disciplinary hearings, he and his representatives were given full opportunity to state their case and the matters put forward on behalf of the claimant were considered by the dismissing and Appeal Panels before reaching their decisions;

94.3 it was reasonable for the disciplinary panel to consider the claimant's grievance as part of the disciplinary case. The grounds of the grievance related directly to the disciplinary charge. The claimant’s right to a fair hearing was not prejudices by that decision;

94.4 it was reasonable fro the disciplinary panel to refuse to call Ms D Mawson to give evidence to the panel as to her decision that there was a case to answer. The claimant’s right to a fair hearing was not prejudices by that decision;

94.5 the failure of the claimant to attend the Appeal hearing was of the claimant’s own making. He may have been upset by the attendance of security officers but their attendance did not prevent the claimant from participating in the Appeal hearing. The claimant chose not to attend the Appeal Hearing but instead went to the police station to complain about the attendance of the security officers. The appeal panel made it clear that it would postpone the start of the hearing but that the hearing would go ahead that day in the absence of the claimant. The claimant had trade union representation. The trade union representative was given the opportunity to attend the reconvened appeal hearing, in the absence of the claimant, but he declined. The appeal panel was unaware, at the time, that the claimant had arrived 10 minutes after they started and was declined entrance by security;

94.6 There was considerable delay in the conduct of the disciplinary hearing. The tribunal is concerned that the reason for the considerable delay in holding the disciplinary hearing has not been fully explained by the respondent. However, having considered all the circumstances, the tribunal is satisfied that such delay did not affect the fairness of the hearing. The investigation took place quickly. Witness statements were obtained from the relevant witnesses within a reasonable time of the incident;

94.7 The fact that the claimant was suspended does not affect the fairness of the decision. Suspension pending investigation of the complaint by WH fell within the band of reasonable responses. It is unfortunate that the suspension carried on for so long. The claimant, a long serving employee with a clean disciplinary record and no comprehension that his conduct on 17 August 2016 was wrong, was naturally upset by the suspension. However, the length of the suspension does not affect the fairness of the procedure;

94.8 As stated above, it is not clear how the claimant says that the failure to notify the full-time Union official before the suspension was a breach of the disciplinary procedure. In any event, any such procedural fault was minor and did not affect the fairness of the procedure overall.

94.9 The claimant has made much of the failure of the Case Manager, Miss Dawson, to give evidence and/or to set out the reasoning behind her decision to progress the matter to a disciplinary charge. However, the tribunal does not accept that this failure affected in any way the fairness of the procedure overall. This may have been a technical procedural fault but it did not affect the way in which the disciplinary and appeal panels conducted themselves.

94.10 the ACAS guidelines were followed in that:94.10.1 an investigating officer was appointed to carry out an investigation to help to establish the facts of each case;

94.10.2 the claimant was informed of the problem;

94.10.3 meetings were held with the claimant to discuss the problem;

94.10.4 the claimant was advised of his right to be accompanied at the meeting and exercised that right;

94.10.5 the disciplinary panel decided on the dismissal and the claimant was advised of the reasons;

94.10.6 the claimant was provided with an opportunity to appeal. In all the circumstances the tribunal finds that viewed overall, the procedure adopted was fair.

[95]In deciding whether, in reaching the decision to dismiss, the respondent acted within the band of reasonable responses of a reasonable employer faced with similar circumstances the tribunal notes in particular that:95.1 the act of misconduct did amount to gross misconduct, fell within the definition of gross misconduct contained within the disciplinary procedure. The respondent did give a satisfactory explanation for reaching this finding. The respondent was reasonable in concluding that the persistent nature of the claimant’s conduct during the short exchange on 17 August 2016 made the abusive and threatening behaviour an act of gross misconduct. The respondent was reasonable in concluding that the claimant was verbally abusive and threatening without any evidence as to the actual words used, without any evidence as to the actual swear words used, without any evidence that the swearing had been directed specifically at WH, rather than just being the use of unspecified swear words as part of the claimant’s speech. The respondent acknowledged that there was no physical assault. The respondent was reasonable, in reaching its decision that this was gross misconduct, in relying on the evidence as to the effect the claimant’s conduct had had on WH. There was no satisfactory evidence before the respondent to suggest that WH had exaggerated the effect of the claimant’s conduct on her, or that her continued upset was caused by some other reason, for example, the possibility that the claimant, with whom she had been friendly for many years, may lose his job. The evidence before the panel was that WH had been upset during the incident, immediately after the incident, when she had locked herself in her car and called others for support, and in the next few days when returning to work. It was therefore reasonable for the respondent to accept WH’s evidence that her upset, caused by the claimant’s conduct on 17 August 2016, had continued from that day up to the disciplinary hearing;

95.2 there is no satisfactory evidence to support the assertion that the respondent artificially escalated the severity of the claimant’s actions to secure his dismissal;

95.3 the respondent was reasonable in concluding that the claimant was aware of the company's disciplinary procedure, was aware immediately after the incident that his conduct was serious enough to warrant suspension;

95.4 the dismissing panel considered the claimant’s length of service and clean disciplinary record. The respondent was reasonable in describing this as “limited mitigation”. That description does not mean that the respondent did not take these factors in to account or take them seriously: the respondent did take them in to account. However, the respondent was genuinely and reasonably concerned that the claimant had not apologised for his actions, had failed to accept that what he had done was wrong;

95.5 the disciplinary panel considered whether dismissal was the appropriate penalty and considered alternative sanctions. It was reasonable to dismiss rather than impose a lesser penalty because the claimant had not given any indication whatsoever that he understood that his behaviour had been unacceptable, that he would not do the same again. The respondent was reasonable to consider, in deciding sanction, whether it was likely that the claimant’s conduct would be repeated. The claimant did not give any indication that his behaviour was an isolated incident, a one–off, and would not occur again. To the contrary the claimant gave every indication to the disciplinary panel that this abusive and threatening behaviour was likely to continue;

95.6 the tribunal has considered very carefully whether the respondent failed to give sufficient weight to the fact that the claimant had worked in the NHS for many years and had faced no previous disciplinary action in that time, in spite of the fact that he was recognised as being at times loud and aggressive. The suggestion is that the claimant is loud, is aggressive, but the respondent has successfully coped with that for many years and, therefore, could reasonably manage more of the same thing, and dismissal for a one-off event, lasting no more than 7 minutes, was not the appropriate sanction, especially as the claimant was recognised as being a good worker, a man with a kind heart. The tribunal accepts that a different employer may have taken that view, may have chosen to impose a final written warning. However, the respondent was reasonable in deciding that dismissal was the appropriate sanction because the claimant was not prepared to accept that what he had done was wrong, was unacceptable. The claimant gave no indication at all that he was prepared to change, if given another chance. In all the circumstances the tribunal finds that dismissal did fall within the band of reasonable responses.

[96]Taking into account all the circumstances the tribunal finds that the dismissal was fair. Contributory fault

[97]In any event, if the tribunal is wrong on that, if the dismissal was unfair, the tribunal has considered whether the claimant contributed to his dismissal. The tribunal notes in particular its findings at paragraphs 65 - 72 above. The tribunal finds that:97.1 the claimant was guilty of verbally abusive and threatening behaviour on 17 August 2016. That is clear from the evidence given during the investigation and disciplinary procedure as supported by the evidence of the CCTV footage;

97.2 the claimant was guilty of wholly unacceptable behaviour during the course of the disciplinary hearings. He was loud, aggressive, threatening, refused to follow reasonable management instructions to stop interrupting. His behaviour when WH was giving evidence was wholly unacceptable The claimant was guilty of culpable behaviour which directly led to his dismissal. The tribunal rejects any suggestion that the respondent should be expected to put up with the type of behaviour exhibited by the claimant. Any award of a basic or compensatory award will be reduced by 100%. Breach of Contract.

[98]The question is whether the claimant was guilty of gross misconduct justifying summary dismissal. The tribunal refers to its findings, particularly at paragraphs 65 - 72 above. The claimant on 17 August 2016 claimant acted in a threatening and intimidatory manner towards his manager. He persisted with that behaviour when told to stop. The claimant’s behaviour during the disciplinary procedure gave a clear indication that the claimant did not consider himself to be bound by the terms of his contract of employment. He used threatening behaviour to members of the disciplinary panel, he refused to take reasonable instruction. His behaviour when WH was giving evidence was wholly unacceptable and viewed in isolation amounted to gross misconduct justifying summary dismissal. The claimant knew that WH, a friend of many years, had been upset by his behaviour on 17 August 2016, had raised a complaint against him, and had felt intimidated enough to request that the claimant not be in the room when she gave her evidence. WH agreed to the claimant’s attendance on conditions which the claimant immediately and repeatedly broke, causing WH more upset.

[99]The claimant was guilty of gross misconduct justifying summary dismissal.

The Law

[1]The grounds upon which the claimant asserts that the judgment should be reconsidered are not clear.

[2]The claimant, in essence, seeks to re-argue the same points put forward and considered at the Hearing.

[3]The claimant raises no new points of evidence which were not known to him at the time of the Hearing. He wishes the tribunal to reconsider the evidence contained within the Bundles of documents and to give certain parts of the evidence more weight.

[4]The claimant was represented at the hearing by counsel. The claimant expresses concern that his counsel did not place enough emphasis on, or did not specifically draw the attention of the tribunal to, certain parts of the documentary evidence. Dissatisfaction with the performance of counsel does not, by itself, justify a reconsideration of the decision.

[5]The claimant does not identify which parts of the judgment with reasons which he seeks to challenge, does not identify the reason for the challenge.

[6]The tribunal considered all the relevant evidence before making its decision.

[7]I cannot find that the interests of justice require a reconsideration. Case No: 2403100/17 There must be finality in litigation.