Ms B Gartside-Ratcliffe v Costco Wholesale UK Ltd: 2408757/2023
EMPLOYMENT TRIBUNALS
Case No 2408757/2023
Between
Ms Beverley Gartside - RatcliffeClaimantCostco Wholesale UK LtdRespondent
Before
Employment Judge HolmesMr M Williams (instructed by Lay representative) for claimantMr P Gorasia (instructed by Counsel) for respondentDate 14 March 2025
JUDGMENT
It is the judgment of the Tribunal that the claimant not unfairly dismissed.
REASONS
[1]By a claim form presented on 15 August 2023 the claimant brings one claim of unfair dismissal. She had originally also claimed race discrimination, but this was withdrawn, and then dismissed.[2]The respondent admits dismissal, but claims that it was fair in all the circumstances. The parties have agreed the Issues to be determined as: What was the reason for dismissal?[2]Was the reason for dismissal potentially fair within the meaning of section 98(1) Employment Rights Act 1996 (ERA)? The Respondent contends that the Claimant was dismissed due to conduct.[3]Was the Claimant's dismissal fair having regard to the principles set out in section 98(4) ERA?[4]If not:4.1 What, if any, compensation should be awarded to the Claimant having regard to those factors set out in section 123 ERA, including consideration of contributory fault? 1 of 234.2 In the event that the dismissal was procedurally unfair, would following a different procedure have made any difference to the outcome? If not, should any compensation awarded be reduced to reflect this? 3. The claimant was represented by a friend, Mr Williams, and the respondent by Mr Gorasia of counsel. The respondent called Phil Ormrod, the claimant’s manager, Chris Snowdon, the dismissing officer, and Jan Semple, who conducted a review of the dismissal. The claimant gave evidence, but called no witnesses. There was agreed bundle. At the outset of the hearing the Employment Judge proposed, and the parties agreed, that the Tribunal would only determine liability, partly because the claimant had not dealt with remedy issues (such as mitigation, which has been put in issue) in her witness statement. Whilst it was hoped that the Employment Judge could deliver an oral judgment before the close of the second day of the hearing, technical IT issues intervened, and prevented the Employment Judge from being able to do that, so this Reserved Judgment is now promulgated, with apologies to the parties. 4.Having heard the evidence, read the documents that it has been referred to, and considered the submissions of the parties, the Tribunal, makes the following relevant findings of fact 4.1The claimant was employed by the respondent at its Oldham warehouse, the Broadway, Chadderton. She had been employed by the respondent since 2002, and at the time of her dismissal was a Marketing Membership Clerk. 4.2 The respondent operates a zero - tolerance approach in respect of drugs and alcohol. Their warehouses are very busy, and employees work in close proximity to members of the public and colleagues. The respondent operates large trolleys, pallets, and forklift trucks in its warehouses. Additionally there is other dangerous equipment, such as cardboard balers, operating in the warehouse.4.3 Consequently the respondent has a Drug and Alcohol - Free workplace policy contained in the Employee Agreement (pages 55 to 58 of the bundle) .4.4 That policy provides in particular: Costco specifically prohibits employees from engaging in the following conduct while working, while on Company premises, while conducting Company business at any location, or while utilising Company vehicles or equipment:• The use, possession, purchase, sale, solicitation, manufacture, distribution, dispensing, or transfer of illegal drugs and substances at any point during the workday, including breaks or meal periods.• The unauthorised possession of open containers of alcohol or use of alcohol.• Being under the influence of illegal substances, drugs, other alcohol, or prescription medicines that have not been reported and authorised by the Warehouse Manager or an Executive.• Being under the influence of prescription medicines that affect your ability to carry out your role that have not been reported and authorised by the Warehouse Manager or an Executive. 2 of 23• The use of someone else’s prescription medication4.5 The policy also provides , at section 2.9 “Drug and Alcohol Testing” for employees to be required to undergo drug or alcohol testing if a manager has reasonable grounds to suspect that the employee is using or under the influence of unauthorised substance when an employee reports to work or whilst the employee is working on Company premises.4.6 In another part of the Employee Agreement (pages 61 to 66 of the bundle) , the respondent sets out circumstances in which an employee is liable to termination of employment without notice. Amongst the examples of conduct which may result in such action at paragraph 14 the following are specified:
findings of fact
[14]Violation of the Drug and Alcohol-Free Workplace Policy:• Reporting for or returning to work under the influence of unauthorised substances.• Possessing, consuming or selling any controlled substances on Costco premises.• Refusing to be tested for alcohol and/or substance abuse in the event of reasonable suspicion of use of an unauthorised substance or as a result of eing involved in or having contributed to an accident.• Testing positive for an unauthorised substance.• Any violation of the Company’s Drug and Alcohol-Free Workplace Policy. 4.7 The claimant was aware of the terms of the Employee Agreement, and had in 2019 and 2022 signed an acknowledgement of receipt of that document. 4.8 On 18 April 2023 the claimant attended for work for her afternoon shift. This was at approximately 12 noon. Between 3 p.m. and 3:30 p.m. Samantha Flood , the marketing manager, approached Phil Ormrod, the general manager, to report concerns that had been raised to her by Olivia Seddon, membership supervisor, at around 2:30 p.m. that the claimant smelt of alcohol. Samantha Flood herself than observed the claimant and she too noted a smell of alcohol, the claimant had a fixed stare, and was behaving erratically. Samantha Flood’s observations were then recorded in an incident report document (pages 67 to 69 of the bundle). 4.9 The respondent retains a testing provider, Synlab, to carry out on-site drugs and alcohol testing. Phil Ormrod contacted Synlab that afternoon to arrange for the claimant to be tested by a technician . He then himself , around 3:30 p.m., spoke to the claimant. He considered that she appeared nervous and responded strangely. She mentioned a recent holiday, and that she had only had one glass of wine over the entire trip. Phil Ormrod could smell alcohol on her breath, and noted that she was stumbling over words. He agreed with the concerns raised by Samantha Flood previously. 4.10 He therefore asked the claimant to come with him to his office, advised the claimant of what had been reported to him and what he had seen. He asked if the claimant wanted someone with her but she declined this. The claimant told him that she had drunk alcohol the day before, but had stopped drinking around 9.00 p.m. . She 3 of 23 then changed her mind and said that it was 11 p.m.. When he asked what she had been doing before he started to shift, she told him that she had been up early making pies and doing housework. He informed her that he had contacted Synlab, and to wait in the office with him for them to arrive. He asked her if she wanted anyone with her during the wait, but she again declined. Phil Ormrod stayed with the claimant throughout this period until the technician from Synlab arrived. 4.11 That was around 5:20 p.m., the claimant consented to the providing a breath test. The technician was Ian Jenkinson, and the claimant agreed to provide a breath test and also a urine sample for drug screening. 4.12 The first test was conducted at 5:29 p.m.. Phil Ormrod considered that the claimant did not breathe correctly into the machine and the way that she had been instructed, but gave a sharp and shallow breath. A red light appeared on the machine, and this was recorded as a positive breath alcohol concentration test, with a reading of 0.44 (see pages 70 and 71 of the bundle). 4.13 Ian Jenkinson then asked the claimant to provide a second sample of breath at 5:50 p.m. , again a red light appeared on machine, and a reading of 1.31 was recorded (see pages 70 and 72 of the bundle). 4.14 The claimant then left the room to provide the urine sample, when, naturally, Phil Ormrod did not accompany her. That sample was negative. 4.15 Ian Jenkinson telephoned his office to report the readings. In the call he mentioned the spike between the first and second breath tests which he considered to be unusual. He reported the claimant taking the initial sharp intake of breath , and queried whether that could have resulted in a false reading. The claimant in the background referred to the red light appearing on the machine and suggested this meant it was not working properly. The call was ended but then Ian Jenkinson’s duty manager called him back, and confirmed that the breathalyser machine had recently been tested and calibrated , and that the red light was normal, it simply indicated a non-zero alcohol result. 4.16 The advice however, was given that in view of the spike between the two tests, further tests should be undertaken. This required authorisation from Phil Ormrod which he provided (page 73 of the bundle). 4.17 Consequently two further tests were conducted at 6:30 and 6:49 p.m., when again the red light appeared on the machine. The readings obtained on this occasion were 1.12 and 1.15 respectively (see pages 75 and 76 of the bundle), and in Jenkinson called his office to report these readings. The telephone calls made by Ian Jenkinson were all on speakerphone and consequently the claimant and Phil Ormrod were able to hear what was said. 4.18 The claimant at this time raised no other issues, or disputed the test results. 4.19 The test results and relevant paperwork were to be provided to the respondent’s head office (Home Office), which was standard procedure. The respondent’s policy was to consider disciplinary action in respect of any reading above 0.05, which was regarded as negligible. 4 of 23 4.20 After Ian Jenkinson had left, Phil Ormrod told the claimant that he would hold a short meeting with her, and again asked if you wish to have a witness present. She declined. Phil Ormrod then arranged for Samantha Flood to attend that meeting to take notes, which she did. The claimant was again asked if she wished to be accompanied, and she again declined. Phil Ormrod read out the test results, and told her that they would be referred to Home Office for analysis. The claimant asked if she would lose her job, and said that she didn’t think she would be over the limit. She said “what will Jaden [her son who also worked for the respondent] think?”. Phil Ormrod explained her the next steps will be taken in terms of investigation and that she was now suspended on full pay. He offered to arrange for a taxi to take the claimant home given the test results, to which the claimant agreed . She left her car at the respondent’s premises (seep page 77 of the bundle for the notes). 4.21 Phil Ormrod then completed the relevant paperwork, and contacted Sue Knowles, the HR and Marketing Director, and Jan Semple the Regional Operations Director to update them on situation. As Phil Ormrod had been involved in the investigation he was told that the paperwork would be referred to Victor Mayer, the risk management manager, and that another general manager in the region would then be involved. 4.22 On 19 April 2023 claimant sent an email (pages 78 to 79 of the bundle) addressed to Phil Ormrod and others the respondent in which she said this: Good Afternoon Following my SYNLAB test performed yesterday afternoon initially at 17.29 and latterly at 18.49. . I am concerned that the machine used was not functioning correctly. As you are aware, the man that performed the test rang his office 4 times to state that he did not feel the equipment was performing correctly, which is a serious concern. On top of that, having taken advice and looking at the paperwork. There is no record on my SYNLAB collection/chain of custody form to say that I performed a urine test. It only records an alcohol breath test. You are fully aware that I did perform a urine test and this should have been recorded on the form. There is also no current medication recorded. Which you heard me provide to him. The sample receipts I was provided with are numbered 536, 583, 540 and 541. These are not consecutive numbers and make it look as though other tests were performed but not recorded. With these issues, I would like to request that SYNLAB can provide answers to the following 1. The equipment was performing accurately. 2. That an explanation of the telephone calls made to his office and the responses he received are provided. 5 of 23 3. Why, when he realised there was an issue with the testing equipment, a second machine was not used. 4. Why is there no record of the urine test being performed. 5. Why is my National Insurance number not filled in 6. Why the test receipt numbers are not consecutive. I am sorry to have to raise this but, I would expect that a professional organisation that you are paying to carry out this service and could result in somebody being sacked, would be able to use accurate equipment and be able to fill in the forms correctly. 4.23 On 20 April 2023 Victor Mayer send an email to Rhiannon Evans of Synlab querying why there were different results in the two sets of tests carried out (page 81 of the bundle). Phil Ormrod spoke to Victor Mayer to explain how four breath test results had been recorded and why. Later that day Victor Mayer sent a further email to Rhiannon Evans (pages 82 to 83 of the bundle) , effectively repeating the queries that the claimant had raised in her email, but preceding them with this: I would appreciate an urgent response as the employee tested today has the following concerns. I [sic] there an internal procedure in place in case the equiment [sic] "fails". Were all procedures followed accordingly by your tech? From your experience, would any of the employees concerned invalidate the results from all tests? I just want to make sure all information is correct and would be valid in court if needed. 4.24 Phil Ormrod spoke with Victor Mayer and subsequently contacted Chris Snowdon, another general manager, who agreed to act as chair for the disciplinary meeting with the claimant. By letter of 24 April 2023 (page 80 of the bundle) Phil Ormrod confirmed the claimant’s suspension, informed her of the allegations against her, and invited her to attend a disciplinary hearing on 24 April 2023 at 14:00 , which would be chaired by Chris Snowdon. The claimant was advised of her right to be accompanied by a fellow employee, family member or friend. The claimant was also advised that if the allegations against her were proven this may result in her immediate dismissal for gross misconduct. 4.25 At some point (precisely when is unclear, the claimant takes no point on this) the claimant was sent, ahead of the disciplinary hearing, copies of the relevant documentation in respect of the testing had been carried out, the investigation carried out by Phil Ormrod, and the notes of his meeting with the claimant on 18 April 2023. 4.26 On 21 April 2023 Phil Ormrod sent the claimant an email informing her that her concerns had been forwarded to Synlab, and that he would be in touch with her as soon as he had heard back from them. 4.27 On 22 April 2023 Chris Snowdon sent an email to Phil Ormrod asking him to send him a statement which included a timeframe of events leading up to the testing of the claimant, and posed a number of questions for him to answer. Phil Ormrod provided his responses in a printed version of the email in which he (or rather Michael Barr, the Assistant General manger) inserted his answers to the questions he was asked which were highlighted in yellow. This document is at pages 88 and 89 of the bundle, but 6 of 23 needs to be viewed in colour in order to differentiate between the questions and the answers. 4.28 In summary Phil Ormrod’s responses were consistent with his account to the Tribunal, and in particular he addressed the question raised by Chris Snowdon about the claimant providing in total four breath tests, and the reason for the first reading being a low one. He explained how the additional two tests had been recommended by the Synlab office. 4.29 Prior to the disciplinary meeting due to be held on 24 April 2023, Phil Ormrod remained involved in seeking further information from Synlab. At 08.21 that morning he pressed for a response (page 90 of the bundle), and at 10.25 that morning Rhiannon Evans did reply (page 91 of the bundle). In that reply she stated that Synlab were confident that the results of the testing were valid, that there were no issues with the machine, and that Synlab could explain the lights, the test numbers and all of the queries that have been raised. She was awaiting some further information, but did raise the question of whether the claimant had had an opportunity to have a drink in the two hours between the call from the respondent and the technician beginning the testing. 4.30 Victor Mayer replied to her later that morning and repeated the claimant’s questions that she had previously raised in her email to the respondent. 4.31 This resulted in a reply from Rhiannon Evans at 12.58 that day (pages 92 to 94 of the bundle). The format that was used by her was to set out each of the six queries raised by the claimant, and then to provide a response to each one. She did so using a slightly different font, which unfortunately is not very distinguishable from the font used in the original questions. Be that as it may, one question and response that went on to become very significant in this case is at item 3, where the following appears: 3. Why a second machine wasn't used when a fault was detected. We do not believe there was a fault with the machine and at no point was this recorded anywhere. We are waiting for a statement from the CT but they are currently on another job at the moment, so we are unable to provide this at present. (Italicised by the Tribunal, and bold font utilised by it for the response). The abbreviation CT refers to the collection technician, in this instance Ian Jenkinson. 4.32 Rhiannon Evans had agreed that a statement would be provided by Ian Jenkinson, but he was not available at the time, and she said that she would send this on as soon as it was received. 4.33 The disciplinary hearing was held by Chris Snowdon as arranged at 14.00 on 24 April 2023. He had been provided with the relevant documents and Phil Ormrod’s investigation records, and he spoke to Phil Ormrod that morning to get an update on the response from Synlab. He was provided with the latest information referred to in the preceding paragraphs. Chris Snowdon reviewed all these documents before the meeting, and also carried out some Internet research on alcohol testing and drink drive alcohol limits. 7 of 23 4.34 In the meeting the claimant was accompanied by Hazel Gloster (her name is not spelt consistently) , a friend but not an employee of the respondent, and Diane Seddon was present from the respondent to take notes. The notes of the meeting are at pages 97 to 106 of the bundle. 4.35 Chris Snowdon asked the claimant to provide her account of the events of 18 April 2023. She told him, as was the case, the previous day had been her day off, that she had visited a public house and had two glasses of wine and a sandwich. She told him that she then went home , did some housework and had two more glasses of wine whilst doing her ironing. The following day before coming to work she had been to her mother’s house, and did not think that the alcohol would still be in her system. 4.36 Chris Snowdon did put to her that she had told Phil Ormrod previously that she had been drinking the previous day until 9 p.m., and then changed it to 11 p.m and asked if this was correct. She told him that it was, after thinking about it, she was ironing until 1 a.m.. The claimant discussed further her movements before driving into work, and mentioned that she had her son with her and would not have driven if she thought that she was over the drink drive limit. She said that she was suffering from anxiety so she may have been acting nervously which may have made her seem worse. Chris Snowdon took this to be an explanation that she was providing for her demeanour in work as observed by her colleagues. She said that she did not expect the alcohol testing to come back positive from the four glasses of wine that she had had the day before , and was shocked and saddened by this . 4.37 Chris Snowdon discussed with the claimant the legal drink drive limits, and how long alcohol levels may be detected after drinking. Hazel Gloster intervened at this stage to say that 13 hours of the length of time that alcohol would typically stay on the breath. This was different from the information that Chris Snowdon had seen online but he wished to bring the discussion back to the results of the Synlab testing where alcohol had been detected. 4.38 He went on to take the claimant through her queries and the responses to them from Synlab. He told the notetaker that he would paste these directly into the notes after the meeting. He considered that the claimant’s main points seemed to be, firstly that the testing equipment was not working properly and, secondly, that the collection technician had not completed the paperwork accurately. He noted the spike between the first and second breath tests, and the reason for the additional tests being carried out. He considered the explanation for the first reading, and Phil Ormrod’s account of the way in which the claimant gave that first breath test. He was still awaiting the statement from Ian Jenkinson. He raised with the claimant the possibility of her having consumed alcohol in the intervening period before the tests were carried out, but she was clear she had not left the office during the period and had not consumed anything. In conclusion he confirmed with the claimant her awareness and understanding of the respondent’s policy, and also referred to the availability of support under the Employee Agreement in respect of drug or alcohol issues that an employee wished to discuss with the respondent. 4.39 After a short adjournment Chris Snowdon decided that he would need to adjourn for longer, as he was still awaiting the statement from Ian Jenkinson. A date was therefore set for the disciplinary meeting to be reconvened. That was set for 28 April 8 of 23 2023. A letter to that effect had been prepared, but does not appear to have been included in the bundle. 4.40 Upon resumption of the hearing when Chris Snowdon announced that he would not be able to conclude the hearing until the further statement had been obtained, the claimant’s witness Hazel Gloster asked the respondent to ask Synlab about the paperwork and “if it would stand up in a Tribunal”. 4.41 The notes of the hearing at page 102 of the bundle do accurately record the response of Synlab to query number 3 as “We do not believe there was a fault with the machine…” 4.42 After the hearing Phil Ormrod again contacted Rhiannon Evans, to chase up the statement from Ian Jenkinson. He was told that this should be available soon, and on 26 April 2023 Rhiannon Evans sent an email to Phil Ormrod and others at the respondent in which the statement of Ian Jenkinson was set out (pages 109 to 110 of the bundle). In it he said this: 'Without the benefit of any notes, I recall that the donor's first breath was not very strong nor very long, but it was a sufficient sample and registered a result of 0.44. I went through the procedure of waiting 20 mins and her next breath result was, I believe, 1.31. This seemed a sharp spike so the Manager (present throughout) asked if I could do a third breath test. I had contacted the Duty Manager re the results as per procedure so asked them if I was able to do a third to which I was advised yes. This was when the issue of the red flashing light on the Drager came up which we agreed must have been down to a non-zero result. I conducted a third test on paper, and I believe the donor blew 1.12 which gave validation to the earlier result of 1.31. 1 followed the paper procedure for a final breath, and it registered 1.15 which again gave validation for the previous readings. The Manager seemed satisfied with the comprehensive tests and thanked me for my help.” 4.43 Whilst the reconvened hearing was to be held on 28 April 2023, the claimant subsequently contacted Chris Snowdon to reschedule it for 1 May 2023, 8 May 2023 and 17 May 2023. It was eventually reconvened on 17 May 2023. 4.44 On 15 May 2023 the claimant sent an email (page 114 to 115 of the bundle) to Chris Snowdon, having received the notes of her meeting on 24 April 2023. In this email she contended that the notes were not accurate, and contained several omissions. The claimant referred to two omissions, one in respect of Chris Snowdon asking who the claimant’s witness was, and the other in respect of there being no record of Chris Snowdon saying that he had made any Google enquiries about the length of time that alcohol stays on the breath. 4.45 The claimant then went on to refer to the tests, and the suggestion made that she had possibly consumed further alcohol whilst at work. She refuted the suggestion and pointed out that she was accompanied at all times. She went on then to refer to the confirmation by Synlab that the staff member was new to the role and inexperienced. She went on to set out 9 (but in fact there were 10) “clerical errors”. She concluded this email with the following: 9 of 23 Due to the serious nature and consequence of the testing process, clerical errors are unacceptable and provide significant doubt on the results obtained. I had not, and have never consumed alcohol at work. Having now taken independent advice on these issues, this is the conclusion of the expert. 'The collection of samples in relation to Beverley Gartside Radcliffe is so fundamentally flawed that the reliability of such evidence particularly in relation to the evidential chain of collection and transmission is such that on a balance of probabilities these could not be relied upon and should be disregarded' 4.46 Despite this reference, no expert evidence has been produced by the claimant to the Tribunal or the respondent in the course of these proceedings. 4.47 Chris Snowdon reconvened the disciplinary meeting on 17 May 2023 when he was again accompanied by a note taker from the respondent, and the claimant was again accompanied by Hazel Gloster. The notes of this meeting are at pages 116 to 121 of the bundle. Chris Snowdon confirmed with the claimant that she had received the notes of the previous meeting on 24 April 2023. 4.48 He went on to discuss the email received from Synlab in which the statement from Iain Jenkinson had been included. He expressed the hope that this fully answered the claimant’s questions. She did not reply. He went on then to go over the relevant section of the Employee Agreement, and their previous discussions on 24 April 2023. He asked if the claimant wanted to add anything in this hearing, to which she replied that she did not. 4.49 Chris Snowdon then proposed a 15 minute break for him to evaluate all that he had in front of him and to take into account what had been discussed in this meeting and the previous one. He explained to the claimant that should he find the allegation against her was proven he would then have to make a decision as to what steps to take under the disciplinary process. He went on to inform the claimant that if the violation was proven it may result in disciplinary action or termination of her employment. The claimant said that she fully understood this, and in response to being invited to add anything , she queried why there was no HR representative present. Chris Snowdon replied that he was a general manager and therefore fully trained on the HR policies. 4.50 Upon reconvening the meeting Chris Snowdon informed the claimant that he had concluded that for whatever reason she had taken the decision to attend work knowingly (sic) that she was under the influence of alcohol , and fully knowing what the consequences may be. He made reference to the Employee Agreement, and the help and guidance available in it and the respondent’s “open door” policy, including the Employee Assistance Programme. He pointed out how the respondent encouraged employees who may have drug and/or alcohol problems to seek help from the Costco Care Network before they became subject to disciplinary action. There were, he said, a lot of avenues the claimant could have taken to seek help and support, but she had failed to do so. He had therefore taken the decision to terminate her employment with immediate effect from 17 May 2023. He handed her a letter to confirm that decision, and informed her of her right to appeal against the decision. If she was told that if 10 of 23 wished to appeal she must do so in writing within 10 days of the date of that hearing, and should address any such appeal to Jan Semple. 4.51 The letter confirming the claimant’s dismissal dated 17 May 2023 is at pages 121 to 123 the bundle, and the reason for her dismissal without notice is stated as being reporting for work on 18 April 2023 under the influence of alcohol. The claimant’s right of appeal, the timescale for appealing, and the person to whom and such appeal should be addressed, were repeated in this letter. 4.52 The notes of this second disciplinary meeting were subsequently sent to the claimant. On the third page of the notes , page 118 of the bundle, the following appears: “3 Why a second machine wasn't used when fault was detected Syn- Lab initial reply We do believe there was a fault with the machine and at no point was this recorded anywhere We are waiting for a statement from the CT but they are currently on another job at the moment.so we are unable to provide this at present Syn - Lab have now replied in full to this question Their full answer” The notes then goes on to set out the text of the statement of Ian Jenkinson received by email from Synlab. 4.53 This entry incorrectly sets out the reply of Synlab to question 3 from the claimant, which had been received by means of Synlab’s email of 24 April 2023, and which had been correctly transposed into the notes of the first disciplinary meeting on 24 April 2023. Chris Snowdon accepted responsibility for this error, but maintained , and the Tribunal accepts, that an error is what it was. Synlab has never accepted in any communication to the respondent that the breathalyser testing machine used to test the claimant was in any way faulty. 4.54 The claimant did not appeal within the 10 day period specified in the respondent’s disciplinary procedure and as notified to her in her dismissal letter and meeting, but by email of 31 May 2023 , sent to Chris Snowdon , and hence not to the person specified by the respondent, she said this (page 125 of the bundle): I write with regard to my recent dismissal which I ever and contend was unfair. I have been somewhat ill since my dismissal, and I note that you have a 10 day appeal policy.That 10 days has expired. However, it is my intention to bring this matter before the courts. This email is sent to give you the opportunity if you wish to extend the 10 days in an attempt to mitigate litigation. I do however have a time limit and will allow until close of business on Monday 5th June 2023 if you wish to hear the appeal. 11 of 23 Not withstanding that I reserve the right to still put your company before the UK before the courts. It is a shame it has come to this but the negligence and the sheer incompetence shown to me how this matter has been dealt with leaves me with little alternative. 4.55 Chris Snowdon duly forwarded this email to Jan Semple, who in turn referred it to Sue Knowles, HR director. 4.56 Whilst in closing submissions Mr Williams explained that in this email the claimant was not asking that her appeal be heard by 5 June 2023, but was merely seeking an extension of time in which to lodge such an appeal, the respondent did not take it that way, and instead, given the urgency that the claimant had imposed in this email, and that Jan Semple was travelling at this time , decided that she would nonetheless conduct a review of the dismissal by Chris Snowdon, which she duly did. 4.57 Jan Semple was provided with all of the relevant documentation and notes of the two meetings held with the claimant. She concluded that the disciplinary process, the decision reached and the sanction imposed were fair in the circumstances. 4.58 Her decision was communicated to the claimant by letter dated 5 June 2023 from Sue Knowles, the HR director (pages 126 and 127 of the bundle). It was , however , a decision taken by Jan Semple, who, although notified of the suspension of the claimant, had no prior involvement in her dismissal. 4.59 The documents reviewed by Jan Semple, and the reasons for her dismissal of the claimant’s appeal are set out in bullet points in the letter of 5 June 2023. The summary of the reasons for Jan Semple’s decision on the appeal, are set out in this letter as:• The process was fair and at each stage you were made aware of the consequences• No investigation meeting necessary as it was a statement of fact that you failed to pass an alcohol/drug test• You were given ample opportunity to voice your concerns/reasons in the meetings• Synlab have confirmed that whilst more than one test was performed that they are confident in the employee from Synlab and the equipment• You were more than aware of our company policies and the consequence of failing an alcohol and/or drug test• You were given time for between meetings to ensure you were able to seek legal assistance• You were accompanied at both meetings• All documentation was supplied to you at each stage of the procedure• It is not appropriate to have HR attend disciplinary hearings the General Manager is trained and capable of making these decisions on behalf of the company 12 of 23 4.60 The next communication received by the respondent was on 7 August 2023, when Mr Williams , now the claimant’s representative, wrote to the respondent raising a number of questions on her behalf. No mention was made in that document, or indeed at any time until the submissions made in this hearing, that the claimant’s email of 31 May 2023 had been misunderstood by the respondent, and that she was merely seeking an extension of time in which to submit an appeal, and was not asking the respondent to hear her appeal by 5 June 2023. 5. Those then are the relevant facts as found by the Tribunal. There has been little factual dispute in this case. Where there has been is mainly in relation to the accuracy of Phil Ormrod’s evidence, particularly in relation to what the claimant is alleged to have said about the consumption of alcohol on the day before she returned to work. The claimant has for the first time , and at a rather late stage , challenged his account, and indeed has challenged the accuracy of the notes of Chris Snowdon’s disciplinary meetings. The claimant has given no prior indication of these challenges, nor has she called the person who accompanied her in both of the meetings with Chris Snowdon, Helen Gloster. The claimant was provided with the notes of these meetings in time for any subsequent meeting, but other than the specific points raised in her email of 15 May 2023, which are alleged omissions from the notes , she has not previously raised these challenges. Where there are such disputes of fact, therefore the Tribunal has , in the circumstances , preferred, on balance , the evidence of the respondent. The Submissions. 6. With the agreement of the parties , Mr Gorasia made his submissions first, and prepared written submissions which were provided to Mr Williams before the start of the second day of the hearing. 7. As the respondent’s submissions are in written form it is not proposed to rehearse them extensively here . Suffice it to say that they set out the relevant law, both in terms of the statutory provisions, and the caselaw applicable to conduct dismissals, particularly the leading case of British Home Stores v Burchell. Reference is also made to the authorities on the approach the Tribunal should take in terms of judging the respondent’s conduct by reference to the band of reasonable responses test, with the Tribunal not substituting its own view that of the employer (Iceland Frozen Foods v Jones, Post Office v Foley). Further in the potential assistance is the judgement of the Court of Appeal in Taylor v OCS Group Ltd, which gives guidance on how a tribunal should approach appeals in the context of assessing the overall fairness of a dismissal. 8. The respondent’s submissions in summary are that the potentially fair reason for dismissal, conduct, has been established, and has not been challenged on behalf of the claimant. Having established that the dismissal was for this potentially fair reason, the respondent submits that it has shown that it followed a fair procedure, had reasonable grounds for its belief in the conduct alleged against the claimant, that it did so after a reasonable investigation, and that the sanction of dismissal in the circumstances was within the band of reasonable responses. 9. In particular, in terms of the investigation, the respondent carried out a perfectly reasonable investigation, using a third party test provider. The various issues raised by the claimant about those tests were all addressed by the respondent raising these 13 of 23 issues with Synlab, and providing those responses to the claimant. The respondent was entitled , it is submitted, to rely upon those results, and the Tribunal is reminded that there was other evidence , in the form of the observations of other colleagues of the claimant , and Phil Ormrod , which supported a conclusion that the claimant had attended work under the influence of alcohol. 10. The claimant’s various criticisms of the testing process , and of the technician administering the test have all been considered and dealt with, and the respondent was entitled to rely upon those results. 11. In relation to the potential appeal, the point is made that the respondent would have been entitled to reject the claimant’s appeal entirely, as it was made outside the specified time period, which itself exceeds that recommended by ACAS. As it was, the respondent carried out a review, which is what the claimant wanted. That there was no appeal hearing is irrelevant, as the claimant did not ask for one, and had nothing new to add in any event. The Tribunal should look at the totality of the process, and if there was any defect in it at the appeal stage , this was of a minor nature, and should not prevent the Tribunal from holding that the dismissal, taken as a whole , was fair. 12. Finally, and in the alternative, the respondent, if the Tribunal were to find that the claimant was unfairly dismissed, seeks a reduction to the compensatory award on the grounds of Polkey, or in the alternative, on the grounds of her contributory conduct in presenting at work whilst under the influence of alcohol, in the knowledge that this constituted gross misconduct under the respondent’s express disciplinary procedures 13. Whilst not expressly pleaded, and also not included in the List of Issues, the respondent does seek a reduction in both the basic and the compensatory awards. Mr Gorasia submitted that this was still open to the Tribunal without an express pleading, but if pleading was necessary, he sought permission to amend the response to include such plea, on the grounds that this was a minor amendment arising from the evidence and the other existing issues in the case, which did not prejudice the claimant. Denial of the opportunity to seek such a reduction to the basic award, however, on a technical pleading based ground would unduly prejudice the respondent. The claimant’s submissions. 14. For the claimant Mr Williams, not being a lawyer was not expected to respond to any of the legal matters raised by the respondent in its submissions, but was also reminded that he need not feel himself constrained to answering points made by the respondent.[15]It was at the outset of his submissions that Mr Williams first raised the issue as to the intended meaning of the claimant’s email of 31 May 2023 in respect of an extension of time for appealing. This was discussed, and although not included in the claimant’s evidence, has been considered by the Tribunal.[16]In terms of his submissions generally , Mr Williams submitted that the claimant’s central assertion was that she had not had any alcoholic drink. The Tribunal has all the evidence on that issue, but he invited it to conclude that this was not a perfect exercise in testing, it was not a perfect day for it, red lights were appearing on the machine, and the Tribunal should be cautious about accepting the results. 14 of 23[17]Once the suspicions of Phil Ormrod had been raised with the claimant, she was in a state of shock, which was understandable. It was evident by the time of her meeting with Mr Snowdon that a lot had gone in her life in the background, and although she had someone with her, she was now a person who was not very well. She would largely say yes or no to questions, and probably needed more help at that stage. He did not believe that Ms Gloster was of any great assistance of the claimant in the circumstances.[18]Having received her dismissal letter , the claimant did ask for an extension of time in which to appeal and had already been to her doctor’s at that stage. She wanted to have her say in an appeal, but the respondent dealt with it , and came straight back to her with its letter of 5 June 2023. There could have been a two minute phone call in which it could have been clarified that she was merely asking for an extension of time. He could understand how her email had been mis-read, however, with the result that we have all ended up in the Tribunal, down, as often happens, to a lack of communication.[19]He accepted that Phil Ormrod’s evidence had not really been challenged, his main challenge had been to Chris Snowdon’s evidence. He made reference to the fact that he had admitted that he had been present in the room all the time with the claimant, but he questioned if this was so.[20]He went on to describe, from a rather personal perspective, how he had seen the claimant, a close friend, become someone who had lost the considerable confidence that she used to have , and was now reduced to someone who was medically unfit to work. He told the Tribunal of some of the effects that the loss of her employment has had upon the claimant, and the total change in her since her dismissal.[21]In conclusion, he referred to the 22 years service that the claimant had with the respondent, and how difficult it often was for people to come forward to seek the help (he having some experience of this himself in his work with the Samaritans). The claimant had an unblemished record, and surely someone , in these circumstances, could have said that there must be something wrong. What had happened to the claimant was very sad, and he invited the Tribunal to find in her favour. The Law.[22]The relevant statutory provisions have been set out in the respondent’s Submissions, and in the Annexe to this judgment.[23]The relevant caselaw has also been cited, and will be considered further in the Tribunal’s discussion below. Discussion and Findings. 1.The reason for dismissal and the test of fairness.[24]The first question to be addressed is whether the respondent, upon whom the burden rests, has established a potentially fair reason for dismissal. The Tribunal is quite satisfied that it has, namely conduct , in the form of the claimant presenting for work whilst under the influence of alcohol. Whilst it was suggested that by dismissing the claimant when it did, the respondent may have saved paying her a service bonus, 15 of 23 Mr Williams made it clear that that would only be an issue that was relevant to remedy. Having established that the dismissal was for the potentially fair reason of conduct, the test to be applied in relation to conduct dismissals, is set out in British Home Stores Ltd v Burchell [1978] IRLR 379, which laid down many years ago the principles to be followed in determining whether a conduct dismissal was fair. They are that, first of all, there must be established by the employer the fact of the belief in the guilt of the employee, and that the employer did actually believe that. Secondly, that the employer had in its mind reasonable grounds upon which to sustain that belief, and thirdly that the employer at the stage at which the employer formed that belief on those grounds had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. 2.Was there a reasonable investigation?[25]In approaching this issue, and indeed the fairness of the dismissal as a whole, the Tribunal does not substitute its own view that of the employer, but decides instead whether , in terms of the investigation, the conduct employer fell within the band of reasonable responses (see Foley v Post Office and Midland Bank v Madden [2000] ICR 1283).[26]The duty is to conduct a reasonable investigation, not a perfect investigation, nor one to the level that would be required for a criminal investigation. That said, the authorities make it clear that the more serious the allegation, and the potential consequences, the more thorough is the level of investigation that is required.[27]It has to be remembered that the initial concern about the claimant’s behaviour at work on 18 April 2023 came not from any testing, but from one of her colleagues. That concern was reported to Phil Ormrod, who interacted with the claimant himself, and who also formed the view that she was under the influence of alcohol. Others also expressed this view.[28]That evidence alone, properly investigated and tested, could have been enough of an investigation to be reasonable. The respondent, however, did not rely upon that evidence, it sought the scientific analysis that would be far more definitive as to the claimant’s alcohol intake. To that extent , the respondent was not solely reliant upon the witness evidence, it was seeking corroborative scientific evidence.[29]To do so cannot amount to a failure to conduct a reasonable investigation, it is the opposite. The claimant’s case therefore has centred on this particular aspect of the investigation. Her case has, at times, resembled the attempts at forensic dissection of expert alcohol testing which is typical of trials in drink – drive cases, where, of course, the much higher criminal standard of proof beyond a reasonable doubt applies.[30]Whilst the points made by the claimant were reasonable ones, and she was entitled to question the results as she did, at the end of the day the simple question is whether, in relying upon a third – party testing service, with the appropriate equipment and level of expertise, the respondent carried out a reasonable investigation. The question thus becomes not whether the respondent itself carried out a reasonable investigation, nor indeed , whether Synlab did, but rather whether , in delegating the investigation to Synlab, and then relying upon their findings, the respondent acted reasonably in terms of investigating the alleged misconduct. 16 of 23[31]Whilst the claimant rather mysteriously appears to have sought , and obtained, some expert evidence of her own (see her email of 15 May 2023) she has not shared this with the Tribunal, nor, more importantly, did she share it, other than by selective quotations, with the respondent, despite its apparently damning conclusions. On reflection, whilst not a point raised by Mr Gorasia, the claimant is probably in breach of her obligations of disclosure , as she cannot be selective about disclosing documents, whether they help or hinder her case. Be that as it may, in any event, without seeing what instructions were provided to, and the purpose for which , the expert was instructed, the Tribunal, and again, more importantly, the respondent , cannot know what relevance this evidence may have had. The respondent could only deal with what was presented to it.[32]There is perhaps a danger in this case of confusing the reasonableness of the investigation into the claimant’s alleged conduct, with the reasonableness of the investigation into the claimant’s challenges to the results of that investigation. The two are not necessarily the same, but in any event, the evidence is clear that each challenge to the testing process and results that the claimant raised was then raised to Synlab by the respondent. Answers were then provided, and shared with the claimant. The question for this Tribunal is not whether Synlab’s responses were correct, but whether it was reasonable for the respondent to rely upon them as being correct. The Tribunal has no hesitation in finding that it was reasonable of the respondent to rely upon those responses, and that in seeking them, and sharing openly with the claimant, the respondent conducted a reasonable investigation. 3.Was a fair procedure followed?[33]In approaching this issue, the Tribunal again does not substitute its own view that of the employer, but again decides instead whether, in terms of the procedure followed, the actions of the employer fell within the band of reasonable responses. This does, as often occurs, have some overlap with the previous issue.[34]Whilst the claimant particularly in her witness statement, and indeed in her communications to the respondent at the time, raised a number of issues in relation to the testing , they were all raised with Synlab, and answered by that company. The respondent was satisfied with the responses to the queries raised by the claimant. Whilst these issues may also be seen to be relevant to the reasonableness of the conclusion reached, they are also to some extent procedural. The respondent raised them in precisely the form that the claimant presented them, and relayed to her directly the responses of Synlab. That was open and transparent, and it was no way unreasonable of the respondent to rely upon the responses of Synlab.[35]In terms of any other procedural issues, there are few. The claimant has raised whether she should have been given the right to accompanied in the initial stages. The respondent says , and the Tribunal accepts, that she was offered that chance, but declined it. Even if that is not correct, there is no right to be accompanied at that stage, and there was no unfairness at this stage of the process.[36]Thereafter, it is hard to see what unfairness in the procedure could be alleged. No complaint is made about providing the claimant , ahead of the disciplinary hearing, the details of the charge against her, and all the necessary supporting documentation. She 17 of 23 was fully able to raise her concerns, and did, and was provided with the further information as the respondent received it.[37]The disciplinary hearing was not concluded after the first hearing, as there was outstanding information required, Chris Snowdon adjourned it. It was adjourned several times at the claimant’s request, pending which she suspended on full pay. She was provided with the further information ahead of the reconvened hearing, and able to respond to it.[38]To this point, the procedure followed by the respondent was clearly reasonable. 3(a)The appeal[39]That brings the Tribunal to the appeal. As is clear from basic principles and the ACAS Code of Practice, a fair procedure will include a right of appeal. The respondent’s own procedure did, as has been seen. Under it, the claimant had the right, of which she was reminded twice, of appeal, and was told when she had to submit her appeal, to whom, and what she should include in her appeal letter.[40]The ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) provides : 26. Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing. 27.The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case. 28.Workers have a statutory right to be accompanied at appeal hearings. 29.Employees should be informed in writing of the results of the appeal hearing as soon as possible.[41]The ACAS Guide specifies what an appeals procedure should contain as follows : It should:• specify a time-limit within which the appeal should be lodged (five working days is commonly felt appropriate although this may be extended in particular circumstances)• provide for appeals to be dealt with speedily, particularly those involving suspension or dismissal• wherever possible provide for the appeal to be heard by someone senior in authority to the person who took the disciplinary decision and, if possible, someone who was not involved in the original meeting or decision• spell out what action may be taken by those hearing the appeal• set out the right to be accompanied at any appeal meeting 18 of 23• provide that the employee, or a companion if the employee so wishes, has an opportunity to comment on any new evidence arising during the appeal before any decision is taken.[42]Here the claimant did not appeal within the specified 10 day time period. She sent the email of 31 May 2023, acknowledging that it was outside that time limit, but stating that she had been ill. Whilst the claimant says (or submits, because this is not in her evidence) that she intended by that email simply to obtain an extension of time in which to submit an appeal, and not that the respondent had to hear her appeal by 5 June 2023, that was not how it was understood by the respondent. The Tribunal considers that this was a reasonable way to read that email, and , indeed , is probably the way most persons would read it. It was not, thus , unreasonable of the respondent to deny the claimant any extension of time in which to hold an appeal hearing, because it, quite reasonably, did not understand that that was what she was seeking. It was certainly not unreasonable for it then actually to conduct an appeal by way of Jan Semple reviewing the dismissal as she did.[43]That review was, as can be seen, quite thorough, as Jan Semple had all of the relevant documentation. Whilst she had no grounds of appeal from the claimant , she was aware of all the issues she had raised, and considered them. The claimant had rather more of an appeal that she may otherwise have got.[44]Finally, in approaching tis issue, the Tribunal does have in mind the dicta in the judgment of Lady Justice Smith in Taylor v OCS Group Ltd. [2006] IRLR 613 cited by Mr Gorasia, where at para. 47 , after warning against Tribunals falling for the “review or rehearing” dichotomy, she says: This error is avoided if ETs realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision maker, the overall process was fair, notwithstanding any deficiencies at the early stage. And at para. 48: In saying this, it may appear that we are suggesting that ETs should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that s.98(4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss 19 of 23 was nearer to the borderline, the ET might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee.[45]Applying those principles, the manner in which the respondent dealt with the claimant’s email of 31 May 2023 in relation to any appeal was , at most, a procedural imperfection, the effect of which was considerably mitigated by the review that was then carried out. Further, this is not a borderline case, the misconduct here was serious, as it has health and safety implications. Any procedural imperfection in the appeal process was precisely that , and does not render the dismissal unfair. 4.The reasonableness of the belief and the sanction of dismissal.[46]The Tribunal has concluded , in these circumstances, that having followed a fair procedure, and carried out a fair investigation , the respondent had a reasonable belief, on reasonable grounds, that the claimant had committed the conduct that was alleged against her, namely attending work when she was under the influence of alcohol.[47]It has to be observed that the claimant’s approach to the evidence of the test results did, at times, resemble that which would be more appropriate to a criminal trial, seeking to find the slightest sliver of doubt to undermine the respondent’s evidence. That was strikingly demonstrated by her seizing upon the omission of the word “not” from the notes of the second disciplinary hearing, when referring to Synlab’s reply to the claimant’s query number 3. As the notes of the first disciplinary meeting show, the response was accurately reported at that time, and indeed, the origin of that report can clearly be seen in Synlab’s email of 24 April 2023, at pages 92 to 94 of the bundle. To suggest that Synlab had at any stage said that it did believe that the testing machine was faulty, rather than that this was an error in notetaking or transcription, is simply implausible, and flies in the face of all the other evidence that Synlab provided to the respondent. It was, frankly, and with the greatest respect, straw clutching. The respondent, therefore, was perfectly entitled to rely upon the evidence of the test results (plus the other evidence) to conclude that the claimant had indeed attended work under the influence of alcohol. (Mr Williams did raise the ingenious argument that the respondent should be estopped from denying that the testing machine was faulty, but was informed that such a principle did not apply in Employment Tribunal proceedings. Even if it did the claimant would have to show reliance upon the misleading statement , and that it would be inequitable to allow the respondent to rely upon it. She did not rely upon it, and whilst a relevant matter to be taken into account in assessing the fairness of the dismissal, it is no more than that.)[48]The next issue then is whether the sanction of dismissal, in these circumstances fell within the range of reasonable responses. That such conduct would be regarded as serious, and could lead to dismissal, was clear from the respondent’s policies, and the claimant accepted that she was aware of this. An employer cannot, of course, dictate what is reasonably to be regarded as misconduct justifying dismissal, if judged objectively, it would not be reasonable to so. The employee’s awareness of the potential consequences of certain types of misconduct, however, is a relevant factor to consider in determining whether dismissal is reasonable. The claimant was so aware.[49]An employer, of course, simply rely on the prescription of certain types of conduct as serious enough to justify dismissal in every case, each case must be considered on its merits. Whilst it may normally be reasonable to dismiss for such conduct, there may 20 of 23 be cases where it is not. Much depends upon the circumstances, and in particular whether there is any mitigation.[50]Whilst Mr Williams made valiant efforts to suggest to Chris Snowdon that , instead of dismissing the claimant , he could have offered her help and support , and repeated this in his submissions, his problem is that this is not his client’s case. Her case was, and remains, that she had no alcohol in her system when she was at work. There was nothing for her to seek help for. The whole basis of her claim is , in effect, that she was “not guilty”. As Chris Snowdon said, the respondent cannot start suggesting to employees that they may need help with things such as alcohol abuse, unless and until they tell the respondent that they do. The respondent clearly has, as he referred to in the disciplinary hearing, facilities to assist employees with such problems, but the employee has to initiate such processes.[51]If therefore , the claimant had accepted the findings that she had attended work with what are quite high alcohol levels, but then informed the respondent that this was because of any addiction , or indeed any other health issues (for alcohol abuse can sometimes merely be a symptom of other conditions) , then the respondent could be said not to have acted reasonably if it did not at least investigate those issues, and, potentially offer help, and not punishment. The Tribunal, however, cannot see how, in these circumstances, by not, effectively off it own bat, as it were, exploring health issues that were not raised by the claimant , or otherwise apparent, the respondent can be said to have been acting outside the band of reasonable responses by proceeding to dismiss an employee whose sole response throughout was that simply that she had not committed the misconduct she was found to have committed.[52]Thus, substantively, and procedurally, this dismissal was fair. It is appreciated that this was a sad end to a long period of employment, and has had devastating effects upon the claimant , and doubtless those around her. That, of course, can be the effect of a fair, as well as an unfair , dismissal. In hindsight, the claimant , perhaps because of issues of which the Tribunal is unaware, made some poor decisions in April 2023. In hindsight, had she accepted the findings, but then advanced mitigation which the respondent could accept, so as to allow them to consider a lesser penalty, she may have been able to retain her employment. The respondent, however, can only deal with the circumstances presented to it, and in these circumstances was entitled to dismiss the claimant. The unfair dismissal claim accordingly fails. Alternative findings[53]Whilst not necessary, given the primary findings, but by way of assistance to the parties should the Tribunal’s dismissal of the claim be wrong, the Tribunal can say that it would, in any event, have made reductions to both the compensatory and the basic award of 100%, to reflect the claimant’s contribution to her dismissal, by her conduct in attending work under the influence of alcohol.[54]The Tribunal is satisfied that she did so on the basis of all the evidence, not only the Synlab test results, but also that of Phil Ormrod, and other witnesses. On a balance of probabilities the claimant did commit that misconduct. Given that such conduct was, to her knowledge, likely to lead to dismissal, it contributed to her dismissal to the extent of 100%, and it would be just and equitable to reduce any compensatory award by 100% pursuant to s.123(6) of the ERA. 21 of 23[55]In terms of the basic award, whilst not pleaded, the Tribunal would have agreed that it was open to the Tribunal to make such a reduction in the basic award. In terms of whether the reduction should be the same as would be made to the compensatory award, if the same matters are being relied upon for both, the case of RSPCA v Cruden [1986] IRLR 83 suggests it will usually be the case that the same reduction is made to each.[56]In terms of any reduction on the grounds of Polkey , (Polkey v A E Dayton Services Ltd [1988] ICR 142 to give its full citation) , again if the only unfairness found was procedural, in relation to the appeal, the Tribunal would have been satisfied that it would have made no difference if the claimant had been given an appeal hearing, and her compensatory award (Mr Gorasia did not seek such a reduction in the basic award) would be reduced by 100%. Conclusion.[57]The upshot, therefore, is that , with some sympathy for the claimant, whom the Tribunal wishes well with her ongoing health issues, her claim of unfair dismissal fails, and is dismissed. This is despite the courteous and measured efforts of Mr Williams, who could have done no more with the case had he been an experienced KC, and for whose assistance the Tribunal is, as doubtless is the claimant, most grateful.