Mr G Duke v The City of Liverpool College: 2409375/2015

EMPLOYMENT TRIBUNALS

Case No 2409375/2015

Between

Mr G DukeClaimant

The City of Liverpool CollegeRespondent

Before

Employment Judge Shotter

In person for claimant

Mrs Skeaping (instructed by counsel) for respondent

Date 1 March 2018

JUDGMENT

[1]The claimant was not automatically unfairly dismissed on trade union grounds, his complaint of automatic unfair dismissal is not well-founded and the claim brought under S. 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 is dismissed.

[2]The claimant’s claim in respect of detriment number one was not lodged before the end of the period of three months, beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them in accordance with S.147(1)(a) of the Employment Rights Act 1996 as amended. It was reasonably practicable to bring the claim within the three-month time limit, it is not just and equitable to extend the time limit to the date of presentation of the claim form and the Tribunal does not have the jurisdiction to consider the complaint which is dismissed.

[3]The claimant’s claim in respect of detriments two to four were lodged before the end of the period of three months, beginning with the date of the act or failure to act to which the complaint relates and the Tribunal has the jurisdiction to consider the complaint.

[4]The claimant was not subjected to a detriment on trade union grounds; his complaint of detriment brought under S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is not well-founded and is dismissed.

[5]The claimant’s application to strike out the respondent’s Response is unsuccessful and dismissed.

REASONS

[1]By a claim form received 18 December 2015 following the issue of an ACAS ECC on 20 November 2015, the claimant who had been employed less than 2 years, claimed automatic unfair dismissal under S.152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A “) and detriment under S.146. The respondent denies the claimant’s claims, maintaining he was dismissed for gross misconduct, he was not caused a detriment(s) and the dismissal was not due to trade union activities.

[2]The claimant relies on four detriments that allegedly took place contrary to s146 on the grounds of his trade union activities, maintaining the respondent attempted to frustrate the claimant’s actions as an active trade union member, as follows:2.1 The claimant alleges that he was “spied on” by Laura Firth, in relation to an incident in June 2015 after his election as branch secretary of the UCU union. After the claimant and Carol Cody held a meeting in the staff room, Ms Firth allegedly reported the claimant’s actions to the head of HR, Mr Harrop, and a record was placed on the claimant’s HR file. Mr Harrop also told the claimant on or around 18 June 2015 that talking to staff in this manner was in breach of protocol, which the claimant disputes (this will be referred to as “Detriment 1: Impromptu union meetings”);

2.2 The claimant alleges that he was denied access to email and IT systems during the summer break in 2015, and was not informed in advance that this would be done. He discovered this on attempting to use IT systems for his trade union duties and was only told that access had been suspended when he queried this subsequently (this will be referred to as “Detriment 2: Partial suspension”);

2.3 The claimant alleges he was initially told by Cath Marshall at the end of July or the start of August 2015 that he would be returning to work without access to email or IT. When the UCU union queried this action with HR on the claimant’s behalf, the claimant alleges that he was then formally suspended from work (this will be referred to as “Detriment 3: full suspension”); and

2.4 The claimant alleges that Mr Harrop subjected him to a detriment on two occasions by deliberately disclosing confidential information about him to members of staff during the claimant’s disciplinary process (this will be referred to “Detriment 4: confidentiality.”).

[3]The agreed issues before the Tribunal are straightforward even though the facts were not: Detriment3.1 Was the claimant subject to a detriment by an act, or deliberate failure to act on the part of the respondent?

3.2 Was the claimant prevented or deterred in taking part in the activities of an independent trade union at an appropriate time, or penalised for so doing? If so,

3.3 Was the respondent’s sole or main purpose (the burden of showing this is on the respondent) in subjecting the claimant to a detriment was to prevent, deter or penalise him for seeking to become a union member, taking part in union activities or making use of union services? Automatic unfair dismissal

3.4 Whether the reason for the claimant’s dismissal was due to his trade union activities or not, the burden of proof being on the claimant to establish this. Evidence

[4]The Tribunal heard oral evidence on behalf of the claimant and from Carol Cody, lecturer and UCU liaison secretary. On behalf of the respondent the Tribunal heard from Viv Lacey, governor, Elaine Bowker, principal and chief executive, Bill Harrop, HR director, Simon Pierce, vice principal, curriculum, and Angela Cox, who was no longer employed by the respondent. She had been the deputy principal, quality and transformation.

[5]There were many conflicts in the evidence. The claimant persisted despite Elaine Bowker’s oral evidence, in his assertion that the actions of a group of employees known as the “Lex 57” were trivial; the Tribunal did not agree. The Tribunal had clear evidence, including contemporaneous documentation, to the contrary, which it preferred in contrast to the claimant’s oral evidence.

[6]In the earlier Preliminary hearing held on 6 April 2016 the claimant was made aware the burden was on him to prove prima facie facts of trade union victimisation. The Tribunal took the view the claimant lacked credibility; he did not give cogent evidence at times and failed to deal with factual evidence that undermined his case, which he either distorted or ignored. For example, twisting the oral evidence given by the respondent’s witnesses in crossexamination beyond recognition. He continued to maintain that Angela Cox had been party to the production of the email sent 9 December 2015 when the evidence of Ms Cox, Bill Harrup and Elaine Bowker was the union campaign and inaccuracies within the campaign and their damaging effect on the respondent was discussed at the senior leadership team meeting. This culminated in an agreement that Bill Harrup and Elaine Bowker go away and consider the matter, which they did taking independent legal advice. It is not the case Angela Cox made the admission as alleged by the claimant.

[7]The Tribunal found the Claimant dishonest with regards to the effective date of termination (“the EDT”) of his employment at Salford University, and the reason for termination of employment for the reasons set out below. The claimant was invited to make submissions on the effect of the earlier Tribunal judgment in case number 2410422/2009 that gave the EDT 6 August 2009; the claimant responded in closing submissions there was “some ambiguity” in the decision alleging the Tribunal gave the contract position no weight. The Tribunal has considered the promulgated Tribunal decision case number 2410422/2009 in detail. The finding of facts relates how the claimant was suspended by a letter received 19 May 2009 and it appears the claimant remained suspended on termination of his contract without notice on 4 August 2009 - paragraph 12.22. At paragraph 12.84.3 there is a reference to the claimant complaining his post had been advertised prior to the disciplinary hearing and at paragraph 12.50 he alleged the day before the disciplinary hearing on 12 August 2009 HR had decided to dismiss him. The Judgment in case number 2410422/2009 records the witness appearing on behalf of HR disputing the claimant’s allegation that his continued employment was an option. The ET1 form together with Grounds of Complaint was received on 5 October 2009. What is clear to this Tribunal is that the claimant did not regard his employment ended on 31 May 2009. The fixed-term contract or its expiry was never brought up in case number 2410422/2009, it was not an issue raised by the claimant because he remained in employment until the effective date of termination when he was summarily dismissed on the grounds of misconduct.

[8]The claimant sought to undermine the respondent’s witnesses alleging they were colluding. The Tribunal did not agree and it reached a view after a careful assessment there was no evidence whatsoever from which the Tribunal could conclude or infer the respondent’s managers had colluded with a view to causing a detriment to the claimant on the grounds of his trade union membership or activities as alleged or colluded to ensure his dismissal. It was not credible a “golden thread” ran through a campaign of bullying and harassment against the claimant from Katy Spall and Simon Pierce, through to the principal Elaine Bowker, Viv Lacey, Laura Firth and Bill Harrop as alleged; there was no evidence to this effect.

[9]The claimant maintains Elaine Bowker has been “caught out in a lie” concerning her membership of the Socialist Workers Party (the “SWP”) and this taints her evidence. The Tribunal was of the view Elaine Bowker’s membership or otherwise of the SWP was irrelevant to the issues to be decided in this case, apart from her credibility. It agreed with the claimant it is puzzling a note taken by Viv Lacey to this effect could be so wrong. It may be that Macclesfield could be confused with Manchester, but it is difficult to see how a reference to the SWP can similarly be confused. Elaine Bowker denied she was a member; the claimant produced a letter marked “C2” during these proceedings confirming she was not and never had been a member of the SWP. The claimant did not challenge Elaine Bowker’s other credentials including her support of the Trade Union movement. The Tribunal accepts there is an anomaly in this evidence; however, Elaine Bowker’s oral evidence was convincing; she was in higher management roles, not allowed to be a member of a political party, and may have indicated to Viv Lacey’s socialist values which may have been misconstrued. The Tribunal accepted Elaine Bowker had not seen Viv Lacey’s notes until this hearing and whist the anomaly is unresolved, it is not a matter which undermines her overall credibility and the cogency of her evidence given the supporting documents plus other witnesses.

[10]Regarding Carol Cody, the Tribunal found she attempted to give honest evidence to the best of her ability in the main. On occasion her responses were influenced by the information the claimant had provided previously. Her evidence did not necessarily reflect what had taken place, for example in relation to the Lex 57, an incident she and the claimant played down to such an extent it became a mere clapping of hands by delegates when the reality was much more serous. In this regard the Tribunal preferred the eye witness account of Elaine Bowker. Carol Cody did her very best to support the claimant in difficult circumstances believing him when he stated he had not lied on his application form. She was aware of the earlier ET proceedings in case number 2410422/2009 but the import of these was not understood. Carol Cody was an experienced representative but such matters went well beyond her experience and abilities.

[11]Bill Harrop’s evidence was found to be wholly credible, in particularly, his description of the day-to-day practices and relationships between the respondent and trade unions. The Tribunal accepted his evidence that a discussion had taken place with Nina Duran (an experienced UCU trade union representative) concerning the impromptu union meeting, and he genuinely believed she had then discussed the matter with Carol Cody and the claimant. The claimant denies this, Carol Cody confirms that she was spoken too, and it is the Tribunal’s view that given the close working relationship between Carol Cody and the claimant it is highly unlikely the matter would not have been discussed as maintained by the claimant. The Tribunal preferred the evidence of Carol Cody that she had “probably” spoken to the claimant about it after Nina Duran had spoken to her, in contrast to the claimant’s evidence, Carol Cody and the claimant contradicting each other. This is relevant on time limits, as the claimant’s position is that he only became aware when he submitted a request for information in November 2015 the Tribunal preferring Carol Cody’s evidence that she had “probably” spoken to the claimant in June 2015, and Bill Harrop’s understanding that the claimant had been spoken to.

[12]The Tribunal accepted Bill Harrop had received an email from Laura Firth regarding two unnamed employees who had reported to her their unhappiness with an impromptu union meeting held in the staff room. Nina Doran agreed to discuss the matter with the claimant and Carol Cody; she raised no issue of any perceived union detriment when asked to discuss the “appropriateness” of their actions.

[13]The Tribunal found the evidence given on behalf of the respondent to be largely credible. Kath Marshall was not called to give evidence. She addressed in her witness statement the HR role and whether she overstepped this role. Kath Marshall’s description of the HR role was supported by the contemporaneous documents and the Tribunal’s judicial knowledge of HR. Her role was as one would expect of a HR officer. Kath Marshall’s explanation for the suspension is borne out by the contemporaneous documentation and Bill Harrop’s evidence the claimant was not placed on full suspension for economic reasons. The Tribunal found this evidence to be credible and has given the witness statement of Kath Marshall due weight. The claimant’s preliminary application to strike out the Response.

[14]Prior to the liability hearing the Tribunal considered the claimant’s application to strike out the respondent’s Response at a preliminary hearing, following which oral reasons were given.

[15]The claimant alleged the respondent’s witnesses had been engaged in intimidatory conduct against Carol Cody. In short, he alleged Carol Cody was not given time off work to undertake union duties, namely attend this liability hearing. She had been informed she could take one day fully paid by Kath Marshall, and given this limit it was alleged she would suffer a financial detriment in contrast to the respondent’s witnesses who were being paid for all the time they spent at the hearing.

[16]It was submitted the respondent’s decision to limit Carol Cody’s pay to one day was an attempt to “coerce her” into not attending. This was a barrier to justice given the number of days for the liability hearing was outside Carol Cody’s control. The claimant also alleged the requirement for Carol Cody to carry out her teaching or find cover, apart from the one day, was an implied threat aimed at limiting her involvement in these proceedings.

[17]The claimant indicated as he remained a member of the UCU, Carol Cody was acting in her capacity as his representative and the respondent’s suggestion that she was attending the liability hearing in the capacity of supporting a former colleague was incorrect. The claimant argued Carol Cody’s attendance throughout the hearing should be paid as facilities time, and the respondent’s failure was an act of coercion and in breach of the ACAS Code. Finally, the claimant indicated Carol Cody had been intimidated by the communications concerning the emails received from the respondent dealing with her request for clarification regarding whether her attendance at this Tribunal hearing would be treated as facility time and for which she would be fully paid.

[18]It is not disputed the respondent agreed to pay Carol Cody for one day’s attendance, and it did not accept the argument that she should be covered by facilities time for the entire 4-day hearing. The Tribunal heard evidence from Carol Cody under oath, who indicated she was appearing as a witness on behalf of the claimant and concerned that the respondent had anticipated her attendance to be on the Tuesday in order that she could give evidence, which she found confusing and intimidating, especially the email of 7 January 2016 sent at 8.04. Carol Cody confirmed following a question put to her by the Judge, if she were to be fully paid by the respondent for the entire period she attended the hearing, and it was “accepted” that this formed part of her union duties and she was not “abandoning teaching duties wily nil” she would be able to give evidence fully and unconstrained. It is notable that after Carol Cody had answered the Tribunal’s question in the affirmative, the claimant attempted to lead in re-examination Carol Cody into giving evidence to the effect that the respondent’s attitude towards her amounted to a “propensity, a pattern of behaviour…. intimidation” impacting on his ability to have a fair trial. There was no satisfactory evidence before the Tribunal to this effect and the issue for Carol Cody was the unfettered ability for her to attend the hearing without a loss of pay.

[19]It was clear from the cross-examination of Carol Cody she had not researched whether her attendance at a trial for more than the one day between the 9th to 13th January 2016 in which she was to give evidence, would be covered by the facilities agreement entered between the respondent and union, and this was not a matter on which the Tribunal could come to a judgment; it was open to Carol Cody to issue her own proceedings if she believed she had been caused a detriment by the respondent’s actions.

[20]On behalf of the claimant the Tribunal was referred to the EAT decision in Force One Utilities Limited v Hatfield

UKEAT/0048/08

[2008] ALL ER (D) 130

and Nicholls v Corin Tech Ltd

UKEAT/0290/07

, a case concerned with judicial proceedings immunity. The Tribunal took the view that the facts in both of those cases are very different to those relating to Carol Cody, where it was legitimate for the respondent to take the view that she would be paid for a one day’s attendance to give evidence, and should ensure her teaching duties are covered.

[21]In Force One Utilities Limited during an adjournment in the Tribunal hearing the Claimant, Mr Hatfield, left the building to return to his car and was approached by Mr Shuter, one of the employer's witnesses. Mr Shuter was an Executive Director of a company associated with Force One. Mr Shuter allegedly told Mr Hatfield “Watch how you sleep at night” and when he moved closer to the Claimant said, “You’ve got one over on me today, you won’t get one over on me again. You’re getting no f***king money out of me.” Some minutes later Mr Shuter drove alongside the Claimant, blocking him in the car park. Mr Hatfield reported that Mr Shuter wound down his electric window and said, “Me and you – 10 minutes up the road now.”

[22]In Nicholls, the claimant had been pursuing a disability discrimination claim against CT Ltd, whose defence was being conducted by B, a director and ultimate owner of the company. It was alleged that just after he left the Tribunal hearing room, B had subjected him to abuse and threatened him with violence if he continued with his claims.

[23]The Employment Tribunals Rules of Procedure permit the striking out of a claim or response because the way the proceedings have been conducted has been scandalous, unreasonable or vexatious. Case law shows that where intimidatory conduct has taken place, the Tribunal must consider whether the conduct:(1) relates to the manner of proceedings;

(2) makes it impossible to hold a fair hearing or

(3) whether there was any option short of barring the wrongdoing party from taking further part in the proceedings which would be proportionate?

[24]The Tribunal accepted submissions made on behalf of the respondent that it was not proportionate to strike out; even on Carol Cody’s oral evidence she was clear that evidence could be given fully and unconstrained. The Tribunal was not satisfied, on the balance of probabilities, that intimidatory conduct had taken place. There was no satisfactory evidence before it that the facilities agreement covered Carol Cody’s attendance at this Tribunal hearing. It is notable the claimant was representing himself and Ms Cody had no legal experience of the Employment Tribunal and she was not representing him in her capacity as a union official. It appeared to the Tribunal she was, as previously concluded by the respondent, supporting a fellow ex-colleague and giving evidence as to what transpired when she acted for him as his union representative. The Tribunal is satisfied Carol Cody can give unfettered evidence freely and without fear of sanction despite the claimant’s best endeavours to persuade it and Carol Cody otherwise. To have struck out the respondent’s Response at this juncture would have given rise to a serious injustice in a case where the stakes are high for both parties.

[25]The claimant’s application to strike out the respondent’s Response is unsuccessful and dismissed. The liability hearing

[26]The Tribunal was referred to an agreed bundle of documents together with additional documents referred to above, oral submissions and written submissions presented by the parties which the Tribunal does not intend to repeat, but has attempted to incorporate the points made within the body of this Judgment with Reasons, we have made the following findings of the relevant facts. Facts

[27]The respondent is in business of higher education providing education and training to 10,000 learners aged 14-year-old upwards through to adults employing approximately 800 staff throughout the college’s six sites.

[28]During the relevant period, Elaine Bowker was the principal and chief executive and she reported to the Board of Governors of which Viv Lacey was a member and vice-chair. Simon Pierce was and remains vice principal of curriculum and he reported to Elaine Bowker and was a member of the respondent’s executive team along with deputy principal quality and transformation, Angela Cox. He was one of Elaine Bowker’s direct reports. Bill Harrop was and remains director of HR who indirectly reports to Elaine Bowker and he line manages Kath Marshall, senior HR business partner.

[29]The respondent recognises two unions, the UCU and UNISON. The principal union for this case is UCU, a national trade union with regional structure and local officers in the respondent’s business. There were approximately 20-30 union representatives at local level across 6 sites, including the site on which the claimant was employed known as “City 6.” It is not disputed UCU union representatives were very active, vocal and robust. Bill Harrop’s dealings were in the main at regional and/or national level. The Tribunal heard evidence that Bill Harrop liaised with Nina Doran, a NEC and chair, whom Carol Cody, in her capacity as branch secretary, described as very experienced and very active.

[30]Carol Cody herself was an experienced union representative, she had been chair and secretary at branch level, an equality representative, treasurer, liaison secretary, women’s equality officer and on the women’s standing committee. Elaine Bowker was chair of the joint negotiating committee and had dealings with both unions in this regard. She was not a member of the SWP.

[31]At all material times the respondent was involved in a reorganisation and this entailed numerous communications and meetings with various levels of the UCU and UNISON. It had formally been awarded grade 1 in 2008/2009, the highest grade. Thereafter, performance in some areas had been dropping and the OFSTED inspection in 2014 gave the respondent the lowest award of 4, with only one area performing well; hospitality and catering. Elaine Bowker’s responsibility was to turn the respondent’s performance around. Cuts in the educational budget had severely affected the respondent, and this resulted in a period of “transformation,” which is a reference to a reorganisation cutting uneconomic courses, reducing staff numbers and improving staff performance. The claimant cross-examined Elaine Bowker on the basis that financial irregularities had taken place and he accused her of mismanagement. The claimant in his evidence referred to Elaine Bowker and senior management giving themselves pay rises, and in cross-examination, accused them of wasting money on legal fees. The claimant produced no evidence to support these allegations and the evidence before the Tribunal pointed to these very serious allegations having no foundation. Had the claimant believed genuine financial irregularities existed, this matter that could have been taken up him or by the UCU in another jurisdiction and not this Tribunal.

[32]Bill Harrop had a reasonably good relationship with the higher echelons of the union; an understanding was reached for the good of the respondent and the members on several matters, not least; how the local level union representatives conducted their day-to-day business. It was difficult time in employee relations, primarily at local level, given the changes the respondent wished to introduce, but overall Bill Harrop’s relationship with regional and national UCU was positive, the priority being to work together. The claimant’s employment by the University of Salford.

[33]The claimant was employed by University of Salford and issued with appointment letters dated 23 October 2008 and 9 March 2009 with an end date of 31 May 2009 at the latest. On the face of it the contracts which were attached to the confirmation of employment letters were for a fixed term. However, the claimant issued Employment Tribunal proceedings on 5 October 2009 under case number 2410422/2009 in respect of his dismissal on 6 August 2009. Had the claimant’s last day of service been 31 May 2009 as now alleged by the claimant, his application would have been substantially out of time. There is no evidence before this Tribunal time limits or the effective date of termination were ever in issue and on the face of it the claimant’s employment with Salford University extended beyond the 31 May 2009.

[34]Judgment & Reasons were promulgated 16 November 2011, following a 6- day hearing. The Judgment makes it very clear the claimant was an employee up until his summary dismissal on the grounds of gross misconduct. The Tribunal finds the claimant could not have been under any illusion about the date and reasons of his termination; he would have known beyond doubt that his employment had not been brought to an end as a result of an expiry of a fixed term contract. The claimant’s completed applications to the respondent.

[35]In applications for a 0.5 lecturer in sociology fixed term until June 2014 and government and politics, the following was set out; “Please answer truthfully. If any information is found to be false at any point in the future, it could result in disciplinary action.” Under “work history” the claimant confirmed he had worked for the University of Salford 2007-2 and 2008-8, 2009-2 to 2009-8. Under “reasons for leaving” the claimant explained; “part time position with annually renewable contract wasn’t renewed by employer.” A reference was not sought by University of Salford at the time by the respondent; the two referees given by the claimant were not from the University of Salford. As a result of this case the respondent has changed its policy to seek references from all past employers, and the Tribunal does not accept the claimant’s submission that the respondent was at fault because it failed to take up references in his case.

[36]The claimant’s job application was successful and a fixed term contract was issued on 10 April 2014, his employment commencing 11 March 2014 with continuous employment from 6 January 2014. The first 6 months of employment was a probationary period, as a 0.5 main grade lecturer – sociology. Clause 19.3 in the contract provided the following; “academic staff have freedom within the law to question and test received wisdom concerning academic matters, and to put forward new ideas, and controversial or unpopular opinions about academic matters without placing themselves in jeopardy or losing the jobs…” Clause 22 referred to the claimant’s contractual entitlement to invoke the respondent’s grievance procedure and in clause 23 the Disciplinary and Dismissal Policy was referred to. Clause 25 confirmed the claimant had a right to belong to a trade union and the UCU was recognised for academic staff. The claimant signed the contract on 6 May 2014. Disciplinary and Dismissal Policy (“DDP”)

[37]The applicable DDP at paragraph 2.3 set out the following; “In appropriate circumstances the college reserves the right to suspend…an employee whilst carrying out an investigation, in which case the employee will receive full pay.”

[38]Appendix 2 at paragraph 5.1 provided; “where an employee is accused of gross misconduct, the continued attendance of the employee cannot be permitted; the college may choose to suspend the employee from duty…during an investigation and pending a disciplinary hearing.”

[39]At paragraph 5.4 provides “access to IT systems will also be revoked. However, in exceptional circumstances the college may allow permitted supervised access to its IT systems and documents. Any such request must be in writing…” Grievance Policy & Procedure (“GPD”)

[40]The GPD under the heading ‘General’ it provided “If the employee wishes to lodge a grievance after their employment has ended, they can do so within a 3-month period. The college and the employee may either go through the hearing and appeals part of the procedure, or the parties can agree to deal with matters based on a written grievance and response (without a hearing). The parties will discuss which option is easiest at the time.” Bullying & Harassment Policy and Procedure for Staff dated January 2013

[41]At paragraph 4.3 “intrusion by pestering, spying or staking” could amount to harassment and bullying. Unlawful industrial action (“Lex 57”)

[42]On the 20 June 2014, the claimant, who was a member of the UCU, together with several other people, was involved in an industrial action regarded by the respondent as unlawful. The evidence of the claimant and Carol Cody was that after a meeting carried out with the respondent’s consent, they clapped UCU representatives as they were entering a meeting with managers concerning proposed changes. Elaine Bowker was a hand eye witness and she described of the disruption and health and safety risks caused by so many people blocking the stairwell and corridor was credible It is not disputed employees were given 30 minutes either side of their lunch break to attend a meeting off the respondent’s premises. Employees, non-employees, local UCU representatives and UCU members, in the words of Carol Cody, were “milling around” the ‘Learning Exchange’ where the consultative meeting was taking place. Elaine Bowker described how a lot of noise was made, security barriers were deactivated due to the number of people and young students at the free school disrupted as were student’s taking examinations. This went on after 2pm when employees should have been back at work in accordance with the agreement reached.

[43]CCTV evidence was used, following which 57 individuals were written to including the claimant, known as the LEX 57, on the 15 July 2014. Carol Cody was not sent a similar letter. The 15 July 2014 letter referred to the incident for which there was “no legal mandate” and to employees taking part “in industrial action is extremely serious and potentially gross misconduct.” Bill Harrop, who wrote the letter, concluded he was currently in dialogue with the unions. The claimant did not respond.

[44]Bill Harrop’s letter dated 25 June 2014 to the UCU set out the incident in detail alleging the unlawful industrial action caused a breach of health and safety, a security risk and confusion for staff and students. Positive discussions took place with the unions and in a letter dated 10 September 2014 to the Lex 57 individuals, including the claimant, Bill Harrop confirmed “I am now optimistic that industrial relations will improve within the college and in the light of this the College will be taking no further action against you.” The claimant did not respond, and the 10 September 2014 letter marked the end of that issue.

[45]The claimant alleges this was the first step in the victimisation process, although he does not claim the Lex 57 incident amounted to a specific detriment. The claimant’s argument that his “card was marked” by management and this resulted in a trail of events that led to his dismissal is not borne out by the evidence. The Tribunal did not accept the claimant’s evidence, which was uncorroborated by Ms Cody, although both under-played what transpired on 20 June 2014, and preferred the more credible evidence of Elaine Bowker, who was present in the building and witnessed a “loud roar,” clapping, stamping and chanting just before 2pm of the people (including union representatives) who congregated in corridors, blocking stairwells and doors. It was not unreasonable for the respondent to conclude the activity, which had taken place in working hours, was not legitimate or lawful union activity. The respondent’s actions dealing with the unlawful union activity were reasonable, and the claimant was treated the same as the other 57 employees against whom no disciplinary actions was taken. The claimant did not respond to the 15 July 2014 letter. He did not challenge the evidence before the tribunal to the effect that executors and governors were unaware of who the Lex 57 were, and had no knowledge of the names of individuals sent the letter, including the claimant. It is difficult to see how the claimant’s “card was marked” as alleged, and the Tribunal accept submissions made by Ms Skeating that had the respondent intended to act against the claimant as a result of the part he played in the Lex 57, an option would have been to dismiss before his probationary period was confirmed. Facebook incident

[46]In late 2014 negative press was published about one of the respondent’s courses. Laura Firth complained to Katy Spall that the claimant had shared this article together with a video on his Facebook page. Unlike that of Carol Cody, the claimant’s Facebook page was open to all members of the public. The claimant’s comment was “This short film is well made – good overall production techniques.” The “Film” in question concerned the respondent and “furious students…fear they are wasting thousands of pounds on a course which is in ‘chaos.’”

[47]The matter was investigated by Damien Kilkenny under the DDP and he concluded “there is a reasonable belief GD [the claimant] was being sarcastic by the comment made on Facebook and such action does have the ability to affect the reputation of the College…a sarcastic comment which seems to suggest that GD agrees with the content…sharing the article in an open Facebook page and give the impression to the public that staff of the college agree that the college is in chaos.” The claimant was referred extensively to the respondent’s Social Media and Policy guidelines under which he faced disciplinary proceedings.

[48]On the 3 March 2015, the claimant initiated a grievance against Kate Spall and Laura Firth attaching a lengthy supporting statement.

[49]The claimant’s disciplinary hearing took place on 17 March 2015 before Sandra Oddy. The claimant was accompanied by Mathew Kay, a union representative, and not Carol Cody. Disciplinary outcome 26 March 2015

[50]Sandra Oddy wrote to the claimant on 26 March 2015 issuing him with a final written warning for adversely affecting the respondent’s reputation when he shared an article/video on his open personal Facebook account. The warning was to remain active on the claimant’s file for 12 months.

[51]On 31 March 2016, the claimant appealed to Bill Harrop in a lengthy 7-page letter setting out his grounds including arguments on freedom of speech repeated during this liability hearing.

[52]The claimant was involved in grievance hearings against Katy Spall and Laura Firth in relation to the complaint that lead to the disciplinary action. Justine Smith considered the grievances and on the 24 April 2015 issued a grievance outcome letter. He rejected the claimant’s grounds for his grievance that he had been “the subject of disciplinary proceedings as a result of your sharing and commenting on an article taken from the Liverpool Echo and posted on your Facebook page as such your contractual rights to academic freedom have been infringed, that Katie Spall has misused her power and that both statute law and college legal obligations have been breached.” The claimant did not refer to any link with the disciplinary outcome to his union activities or membership.

[53]The fact the grievances were not upheld and his appeal against the final written warning to Bill Harrop was unsuccessful had no causal link whatsoever to any union activity and so the Tribunal finds.

[54]At some date in early May 2015 the claimant was elected branch secretary of the City Branch of UPU encompassing Learning Exchange and Clarence Street sites. There was a dispute as to when the respondent became aware of the claimant’s election. The Tribunal took the view that the date of Bill Harrop’s formal knowledge was irrelevant. He was made aware of the claimant’s election informally by Nina Duran during this period and Kath Marshall was made aware by an email from Carol Cody sent 18 May 2015.

[55]The claimant submitted a second grievance to Bill Harrop on 15 May 2015 concerning Kate Spall in relation to the Facebook incident, which Bill Harrop refused to re-hear. Bill Harrop took the view that the tagging into the Liverpool Echo article by an ex-student who made positive comments in Kate Spalls Facebook was not relevant to the claimant’s case, which was different. The Tribunal found Bill Harrop was entitled to take this view given the clear differences between the two events, and it found on the balance of probabilities, there was no causal connection with the claimant’s union activities or union membership.

[56]On the 11 June 2015, the claimant raised a grievance concerning Bill Harrop alleging bullying, harassment and victimisation. There was no reference to these allegations being union related; had the claimant believed this to be the case he would have set out the allegations in detail, as was his practice. The Tribunal infers from the claimant’s omission that he did not believe the alleged bullying and harassment by Bill Harrop, Laura Firth and Kate Spall, was union related at the time.

[57]In an email sent 17 June 2015 the claimant raised a further grievance with Simon Pierce, against Kate Spall, to which Simon Pierce responded to Bill Harrop and Kath Marshal “I will acknowledge but I do think we must take a view at some point about these complaints being vexatious?” Detriment 1: Impromptu union meetings

[58]Bill Harrop responded to the claimant’s fourth grievance in a letter dated 19 June 2015 that set out the history of the matter and making the point that “no further investigation on this topic will take place…it is not appropriate use of College resource to respond to communications from staff on matters that have already been dealt with and where procedures have been exhausted…we have concerns that your conduct towards Katie Spall in particular is verging on vexatious; this is not acceptable...Additionally it is worth noting that I had a discussion with Nina Doran, UCU liaison committee secretary, last week to tell her about the complaints received from staff about you holding impromptu UCU meetings in a staff room in Clarence Street. Nina agreed to tell you that this could not be repeated as it falls outside the protocol for conducting union business.” A note was put on the claimant’s and Carol Cody’s personnel files in the event of a repeat in the future, which has been made much of by the claimant at the liability hearing.

[59]There was extensive correspondence before the Tribunal concerning the claimant’s appeals and numerous grievances. His complaints were essentially concerning the final written warning; Kay Spall not being disciplined when he was and the fact he was not allowed to raise a further grievance against Katy Spall. Given the voluminous correspondence and repetition within the claimant’s complaints and grievances the respondent’s decision not to give the claimant an opportunity to have yet a further grievance hearing in relation to Kay Spall, and not discipline her was unconnected to his union activities. The respondent drew a clear distinction between the claimant’s deliberate posting on Facebook and Katy Spall being tagged, the tagging comments were critical of the article unlike the claimant’s comment which was not. The Tribunal took the view on the balance of probabilities there was no satisfactory course of conduct as alleged by the claimant, and no evidence of a “golden thread” through to Kate Spall. Disciplinary allegations that led to the claimant’s dismissal Detriment 2: Partial suspension

[60]Kath Marshall wrote to the claimant on 5 August 2015 inviting him to attend an investigation meeting with Damien Kilkenny concerning a “potentially serious issue…when you applied for the position of main grade lecturer in Government and Politics on 16 December 2013 and for a fixed term 0.5 post in Sociology on 6 March 2015 you stated in your application forms that you had been employed by the University of Salford…you stated that your employment ended when your ‘renewable contract’ was not renewed….we have recently been made aware…you were in fact dismissed for gross misconduct and specifically we understand for waging a vendetta against University colleagues. If our understanding is correct, then the statement you provided in your application forms…is at best misleading and at worst dishonest…We have considered whether to suspend you from your duties pending our inquiries in to the allegations. At the current time our students are on leave from college and as such we do not consider it necessary to suspend you from your teaching duties although his is something we will keep under review. However, whilst the investigation is ongoing we have disabled your access from the college’s system as an alternative to suspension.”

[61]Carol Cody responded in an undated letter alleging the alternative to suspension was “ultra vires” and a “violation of both Dr Duke’s rights and a violating of the rights of all UCU members…your decision to deny IT access has a direct and potentially negative effect on members within the branch…and in direct contravention of the law, specifically Trade Union and Labour Relations (Consolidation) Act 1992 section 146.”

[62]The claimant sought activation of his IT account on several occasions. In an email sent 10 August 2015 to Carol Cody Kath Marshall, who envisaged the claimant’s return to work wrote; “…as the allegation being investigated a potential act of gross misconduct it is appropriate for us to take the decision to restrict access as an alternative to suspension, we will however review this decision after the investigation meeting [which was due to take place on 19 August]…I would expect the impact on Gary’s role as a union official and his ability to contact and support members is limited as yourself and other colleague union officials continue to have full access to systems and the ability to forward communications as necessary…when Gary return to work on 17 August details of his actual duties will be clarified for him by Kate Spall.”

[63]The claimant responded in a letter dated 10 August 2015 seeking clarification as to where in the respondent’s Disciplinary Policy it had the right to impose “such a sanction as an alternative to suspension” maintaining it impacted on his ability to fully represent UCU members and facilities to do so must be provided under statute. Detriment 3: Full suspension

[64]As a result of the claimant’s letter and with the prospect of the claimant returning to the workplace after his holidays, Bill Harrop took the decision the claimant should be suspended, there having been an economic advantage to the claimant being partially suspended whilst on holiday. In a letter dated 11 August 2015 he set out the following; “After further consideration and in the light of your pending return to work following the summer break on 17 August 2015 a decision has been taken to suspend you from duty from that date. Your suspension is not a disciplinary sanction… you are specifically instructed not to access any of the college computer systems and access to your email account and other college systems has been suspended.”

[65]Party-to-party correspondence followed concerning whether the suspension fell outside the band of reasonable responses, the claimant maintaining that it did. The claimant was provided with a copy of the letter obtained from Salford University attached to a letter dated 14 August 2015 from Bill Harrop in which he sought to justify the suspension; “I consider that a possible outcome of the investigatory meeting may be that your actions are seen as being dishonest, causing a breach of trust and confidence.”

[66]The Tribunal has noted the contents of various emails and correspondence exchanged during this period, including the email from Bill Harrop to Spencer Brew sent 15 August 2015 and the reference to “Happy Days Spencer :-).” The Tribunal accepted Bill Harrop’s explanation that the comment was not linked to the claimant but the fact Spencer Brew was just about to go away on holiday. If the Tribunal is wrong on this, it matters not if Bill Harrop was happy at the prospect of the claimant’s disciplinary investigation. He was not the investigating officer or decision maker in connection with the disciplinary and appeal.

[67]By 15 September 2015 the claimant was informed Damien Kilkenny had completed the investigation and concluded there was a disciplinary case for the claimant to answer. The claimant was invited to a disciplinary hearing before Simon Pierce, in accordance with the ACAS Code of Practice. At no stage did the claimant raise any issue with Simon Pierce hearing the disciplinary case, and there was nothing to put Simon Pierce on notice that it was inappropriate for him to hear it.

[68]Several documents were before Simon Pearce including a letter from the University of Salford dated 31 July 2015 confirming the claimant had been dismissed (it did not say what for) and the Employment Tribunal’s reserved judgment in case number 2410442/2009 promulgated 16 November 2011. The Reasons recorded a claim form was received 5 October 2009 the claimant brought a claim of unfair dismissal following his dismissal by the respondent on 6 August 2009, setting out why he had lost his claim for unfair dismissal. Under the paragraph titled “claimant’s submissions” it was recorded “the claimant submitted that he had been unfairly dismissed because of procedural irregularities and because the respondent had never proved that anyone had been bullied or harassed or proved that the university had been brought into disrepute by his actions.” Nowhere in the judgment and reasons totalling 32 pages is there a reference to the claimant’s employment being terminated by the expiry of a fixed term contract.

[69]The Tribunal in case number 2410442/2009 found as a matter of fact, having heard evidence form several witnesses, including the claimant, the claimant was suspended on 19 May, investigated, took part in a disciplinary hearing on 4 August and he unsuccessfully appealed the decision to dismiss. At paragraph 39 onwards the Tribunal found the claimant’s dismissal fell within the band of reasonable responses and he was unsuccessful in his claim for unfair dismissal which was dismissed.

[70]In a letter dated 2 November 2015 the claimant raised a grievance against Laura Firth for “spying on me in the course of undertaking my legitimate trade union activities in the staff room within Clarence Street…on or around June 10 2015. I consider Laura Firth’s actions and the outcome of those actions- note on my permanent record – as bullying and harassment in the course of undertaking legitimate and lawful trade union duties.”

[71]Over a period of some 4-months leading to the disciplinary hearing a “campaign” in the claimant’s defence took place, which included distribution of leaflets and posters, weekly protests, a petition, Facebook entries alleging the allegations had been fabricated and the claimant victimised, a crowd funding campaign and the claimant’s case was raised at TU conference, with MP’s and local councillors. A considerable amount of information concerning the claimant’s disciplinary was in the public domain as a result of actions taken by the UCU, Carol Cody and others. There was also the threat of strike action. During this period the respondent did not exercise their right to reply and kept confidentiality despite Bill Harrop’s frustration with what he believed to be the circulation of false information.

[72]The disciplinary hearing took place on 5 November 2015. the claimant was represented by Roger Grigg, regional UCU representative and non-verbatim notes were taken, which have been considered in full by the Tribunal. The outcome letter dated 25 November 2015 ran to 5-pages. Simon Pierce related how he had carried out his own “direct investigations” and spoken with Viv Lacey concluding she was an “honest and trustworthy witness” who provided a “truthful account of how she had heard of you …” He found there to have been no collusion between management, and that the claimant had not suffered a detriment or been victimised because of trade union activities.

[73]Regarding the dismissal, Simon Pierce found the claimant’s actions “in withholding the information regarding your dismissal and misleading the College with regard to how your contract with Salford University came to an end was sufficient to warrant disciplinary action. He took the claimant’s mitigation into account, pointing out the respondent “relies heavily on the personal integrity and honesty of all its employees and puts trust in every applicant to be entirely host and trustworthy when providing details of previous employment and reasons for leaving.” Simon Pierce held a genuine belief based on a reasonable investigation, [that included consideration of the documents referred to earlier], the claimant had been dismissed by Salford University for gross misconduct…this was not the reason given on your application form…when you were specifically asked why your employment ended…I conclude therefore that you did deliberately mislead the College when completing your application form.” In short, the claimant was dismissed for dishonestly and there is no evidence before the Tribunal Simon Pierce’s decision was causally connected in any way to the claimant’s trade union activities or the fact that he was a trade union representative due to taken up a higher position in the UCU. Detriment 4: confidentiality

[74]Immediately the decision was taken to dismiss the claimant and before the claimant had appealed, Bill Harrop emailed the outcome to all members of staff with the intention to put a stop to several misleading communications on social media concerning the claimant’s suspension and disciplinary on which the respondent had been silent before due to confidentiality of the disciplinary process. It is not disputed by the parties that communications concerning the claimant, his trade union status and activities, and the disciplinary process were made in a public forum for staff, students and members of the public to read. It is also not disputed that there was disquiet amongst several union officials and union members, with a possibility of a strike action being taken. The email began “You will appreciate that it is highly unusual for us to comment on any individual case, however, given the untruthful…” and referred to “several false and misleading allegations are being made regarding a HR matter – specifically, the dismissal of Gary Duke.”

[75]The claimant responded in a letter dated 11 December 2015 to Elaine Bowker confirming he “was dismissed” from his position at Salford, which was not the position taken by the claimant during this liability hearing when he continued to put forward the argument that his employment with Salford University came to an end following eventual expiry of a fixed term contract. The claimant alleged Bill Harrop had breached confidentiality in an act that was “overt harassment and bullying.”

[76]The appeal hearing took place on 14 January 2016 before Angela Cox. The claimant was supported by Roger Grigg and the minutes of that meeting that ran to 8-pages have been considered by the Tribunal in full. In a 13-page appeal outcome Angela Cox addressed the claimant’s grounds of appeal and the substantial detail given by the claimant regarding alleged collusion and trade union detriment, exploring the motivation of the individuals involved. The Tribunal found Angela Cox to have been a particularly impressive witness at the liability hearing, giving credible evidence supported by contemporaneous documentation. Law Detriment for a trade union reason under S.146(1).

[77]Section 146(1) states that: ‘A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of — (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.’

[78]In order to establish a contravention of any of the provisions in S.146 TULR(C)A it is necessary to show the claimant has been subjected to a detriment by an act, or deliberate failure to act, on the part of the employer. The term ‘detriment’ is not defined in the TULR(C)A. It can include reprimanding, disciplining and demoting, threats of action and has a wide definition. A dismissal cannot amount to a detriment — S.146(5A) TULR(C)A. The only remedy for an employee dismissed on union grounds is a claim of unfair dismissal. Time Limits

[79]A complaint under S.146 must be lodged before the end of the period of three months, beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them — S.147(1)(a). Where an act extends over a period, time will start running from the last day of that period — S.147(2)(a).

[80]If the Tribunal is satisfied that it was not reasonably practicable to bring the claim within the three-month time limit, it may extend the time limit to such further period as it considers reasonable — S.147(1)(b).

[81]A failure to act is to be treated as being done when it was decided on. In the absence of evidence to the contrary, this will be taken to have occurred either:(a) when the employer does an act inconsistent with doing the failed act, or

(b) if the employer has done no such inconsistent act, when the period expires within which the employer might reasonably have been expected to do the failed act if it was to be done — S.147(2)(b) and (3). Unfair dismissal

[82]The right not to be dismissed on trade union grounds is contained in S.152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). That section provides that a dismissal is automatically unfair if the principal reason for it is that the employee:(a) was, or proposed to become, a member of an independent trade union,

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time.

[83]In contrast to ‘ordinary’ unfair dismissal cases the question of whether the employer was reasonable in dismissing does not arise. Once the reason (or principal reason) for dismissal is shown to be one of those specified in S.152(1) TULR(C)A, the dismissal is deemed to be automatically unfair.. An employee does not have to show any period of qualifying service before he or she can bring a claim for automatically unfair dismissal — S.154.

[84]Both Ss.152 and 153 TULR(C)A operate via the unfair dismissal provisions contained in the ERA, stating that a dismissal proscribed by either section will be regarded as unfair for the purposes of Part X of the ERA. The jurisdiction to bring a claim of automatically unfair dismissal, or redundancy selection, for trade union reasons therefore derives from the ERA, and in keeping with unfair dismissal claims under that Act, the claim must be lodged before the end of the period of three months beginning with the effective date of termination. However, an employment tribunal may extend this time limit for a further reasonable period if it is satisfied that it was not reasonably practicable to present the claim in time — S.111(2) ERA. Conclusion – applying the law to the facts Detriment 1: Impromptu union meetings

[85]With reference to the first issue, namely, was the claimant subject to a detriment by an act, or deliberate failure to act on the part of the respondent in relation to alleged detriment 1, the Tribunal found on the balance of probabilities that he was not.

[86]Turning to the first detriment alleged and the issue of time limits, the Tribunal found the claimant was out of time. The alleged act took place on 14 June 2015 following which the claimant received a letter from Bill Harrop on 19 June 2015 concerning the complaints received about the impromptu union meeting. The claimant raised a grievance against Laura Firth complaining she had spied on him on 2 November 2015, when he first became aware of the alleged spying issue.

[87]The claimant has made much of Bill Harrop failing to reply to the claimant’s request for a copy of the protocols. Bill Harrop explained in oral evidence that he did not reply when asked for protocols, he did not want to start another “ping pong” exchange with the claimant. There was no evidence this was an issue with Nina Doran; she discussed the matter with Carol Cody and the Tribunal accepted Bill Harrop’s evidence that she had agreed to do so. If it was inappropriate the matter would have been taken up by the union, and the Tribunal found the non-production of the protocol did not extend the statutory time limit in any way.

[88]The proceedings were issued 18 December 2015 and as the cause of action arose on 14 June 2015 the alleged detriment claim is substantially out of time in accordance with S.147 as referred to above. There was no evidence of a continuing act. The time limit runs from the date of the “act or failure to act” and not when the claimant discovered the act. The claimant had access to the union, and had threatened on numerous occasions to take legal action as set out above, not least the 2 November 2015 grievance letter. “Reasonably practicable” means somewhere between “physically possible” and “reasonable” described in Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

as a test of “reasonable feasibility.” It was reasonably practicable for the claimant to have issued proceedings relating to the impromptu union meeting complaint which was brought to his attention on 19 June 2016. With reference to the claimant’s allegation of “spying” it was not reasonably practicable for the claimant to have brought proceedings within the statutory time limit given the claimant’s lack of knowledge until 2 November 2015 following a subject access request. No satisfactory explanation was given as to why the claimant had failed to issue proceedings earlier than 18 December 2015, and the Tribunal found it was not reasonable to extend the time limit to the date of presentation. There was reference in the document exchange relating to the claimant’s grievance to a pre-claim protocol prior to legal action, and there is no reason why the claimant could not have issued proceedings in November 2015 given the public interest in claims being brought promptly against a background where the primary limitation period is three months and taking into account the objective consideration of the factors causing the delay and the period that should reasonably be allowed in those circumstances for proceedings to be instituted. The Tribunal decided it was not reasonable to extend the time limit to 18 December 2015 and that means the claim in respect of the first detriment is out of time and is dismissed.

[89]In conclusion, the claimant’s claim in respect of detriment number one was not lodged before the end of the period of three months, beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them in accordance with S.147(1)(a) of the Employment Rights Act 1996 as amended. It was reasonably practicable to bring the claim within the threemonth time limit, and it is not just and equitable to extend the time limit to the date of presentation of the claim form.

[90]A failure to act is to be treated as being done when it was decided on. In the absence of evidence to the contrary, this will be taken to have occurred either:(a) when the employer does an act inconsistent with doing the failed act, or

[91]If the Tribunal is wrong on the time limit point, in the alternative, it considered whether the alleged detriment took place, and found on the information before it the claimant had not presented a prima facie case and there was no satisfactory evidence before the Tribunal that he had been caused a detriment. The claimant takes issue with Laura Firth complaining about the undisputed impromptu meeting, alleging it was trumped up despite both the claimant and Carol Cody agreeing the incident had taken place. He and Carol Cody explained they could only put union notices up in the staff room and not on the corridor walls. It is notable Carol Cody does not deny there was not an impromptu meeting. She explained in her oral evidence how rooms were made available when needed for regular branch meetings, and there was no designated room in City Branch and a staffroom or empty room was used.

[92]The claimant and Carol Cody maintained the email sent 14 June 2015 consisted of a monitoring of legitimate trade union activities by Bill Harrop requesting Laura Firth to “keep an eye on” their legitimate union activities; in the words of the claimant to “spy” on them. The Tribunal concluded the email cannot be objectively interpreted to mean this. Giving it a straightforward interpretation and the reference to the word “repetition”, Bill Harrop asked Laura Firth to let him if know if there are any further complaints from staff concerning the claimant and Carol Cody carrying out impromptu union meetings in staffrooms, the initial complaint having been discussed with Nina Doran who subsequently raised the matter with the claimant and Carol Cody. The request made to Laura Firth did not amount to spying or monitoring the claimant’s trade union activities. It is notable no disciplinary action was taken. The note on the file was merely confirmation of the steps that had been taken. In submissions, the claimant stated it was inappropriate for Bill Harrop to get Nina Durran to carry out a management role by having a word. The Tribunal did not agree. Bill Harrrop described normal industrial relations in the work place whereupon disciplinary steps were to be avoided if possible, and the issue resolved without any aggravation. Bill Harrop’s response reflected acceptable industrial practice, and given the intention to deal with it informally, there was no requirement for the individual names of complainants to be obtained and divulged to the claimant. Bill Harrop tried to diffuse the situation and he cannot be criticised for this. In short, the claimant was not prevented or deterred in taking part in the activities of an independent trade union at an appropriate time, or penalised for so doing and his claim is dismissed. Detriments 2 & 3: Partial and full suspension- the time limits

[93]Turning to the second and third detriment alleged and the issue of time limits, the Tribunal found the claimant within time. The partial suspension took place on 5 August 2015 and 11 August 2015 in relation to the full suspension. In response to the partial suspension the claimant, through Carol Cody, objected referring to contravention of section 146 of TUR(C)A and the “violation” of his rights. The claimant was aware at that stage of his statutory rights and had access to legal advice within the union concerning time limits for issuing proceedings. The ACAS referral took place on 20 October 2015 and Early Conciliation ended 20 November 2015, extending the primary limitation date from 4 and 11 November 2015 to 20 December 2015. The proceedings were issued 18 December 2015, the alleged detriment claims 2 & 3 are in time and the Tribunal has the jurisdiction to consider those complaints.

[94]With reference to the issue concerning whether the claimant was subject to a detriment by an act, or deliberate failure to act on the part of the respondent in respect of the partial and full suspension the Tribunal found that he was not, and the claimant was not prevented or deterred in taking part in the activities of an independent trade union at an appropriate time, or penalised for so doing.

[95]The relevant facts are thus; on 22 July 2015 Viv Lacey found the claimant’s name and googled it. She found a Manchester Evening News Article which pointed to a Gary Duke having been dismissed for bullying and harassment from Salford University. The claimant submitted this was part of a conspiracy on the part of the respondent’s managers. The Tribunal did not accept the logic of the claimant’s submissions. It was however bemused by the email send to Elaine Bowker sent on 22 July 2016 that attached the cut and paste article in the email under the heading “GD” without any further comment. When this article was emailed to Elaine Bowker Viv Lacey was aware Kate Spall had mentioned the claimant by name, and she had noted the claimant’s name due to possible family connections. Elaine Bowker rang Viv Lacey immediately upon receipt of her email as she was concerned. Does this interaction point to a conspiracy? The Tribunal was of the view it did not in itself prove collusion, and there was no evidence of a conspiracy. The claimant submitted Viv Lacey took this action because he had become a union official and the respondent believed he would be a “thorn in their side.”

[96]Despite the oddity of Viv Lacey sending the 22 July 2016 email with no explanation, the Tribunal on the balance of probabilities accepted Elaine Bowker’s evidence that she had not discussed the claimant with Viv Lacey before the email was sent. The problem for the claimant is, whatever Viv Lacey’s motivation was, her search had found information that subsequently raised serious questions over his honesty given the improperly completed application forms. The claimant has exaggerated a minor fact into a fully blown conspiracy theory. The information was available on the internet to be discovered at any time, and there was no requirement for the respondent to either produce the note made by Viv Lacey, a screen short of her Google search or proof that Duke was a family name, as submitted by the claimant. It is notable the claimant never made this request during the disciplinary process.

[97]Viv Lacey’s motivation was not relevant to the decision to partially and then fully suspend the claimant as she was not the decision maker in this regard. Kath Marshall was asked by Bill Harrop whether the claimant was the same Gary Duke and she duly investigated this. She looked at the claimant’s application form to see what reasons he had given for leaving Salford, contacted Salford University who wrote back and confirmed the claimant had been dismissed and why, and she obtained a copy of the Employment Tribunal judgment. Kath Marshall checked the people who interviewed the claimant, noted the referees, and the reasons the claimant gave for leaving Salford, concluding the evidence amassed pointed to the claimant having a case to answer. The claimant’s partial suspension followed, and the Tribunal finds that there were legitimate grounds for that suspension and did not agree with the claimant that it was unreasonable or causally linked to his union activities. Kath Marshall’s sole motivation was to protect the respondent pending a disciplinary investigation.

[98]The claimant alleges there was a conspiracy against him by Viv Lacey with Elaine Bowker, Bill Harrop, Angela Cox, Simon Pierce and Kath Marshall. There was no satisfactory evidence before the Tribunal that such a conspiracy existed; no other person outside of HR was involved in the decision to suspend. The insurmountable problem for the claimant is that the partial suspension arose following reasonable concerns that he had lied on his application form and this was a possible act of gross misconduct. The Tribunal accepted Kath Marshall had decided not to suspend the claimant as he was on paid holiday leave and the college was closed to students, with a view to not paying the claimant full pay whilst he was on suspension. The Tribunal accepted Bill Harrop’s uncontested evidence that a partial suspension resulted in an economic benefit to the respondent, and it was also used in circumstances where an employee was on sick leave but facing a disciplinary investigation.

[99]Kath Marshall took the view protection was needed and it was on this basis the claimant’s access to the IT network was suspended. The Tribunal accepted there were no causal connection between suspending the claimant’s IT access and his union activities. It accepted there were several union representatives who had access to the IT system during this period, the claimant being but one of approximately 20. On 5 August, he successfully accessed IT through Carol Cody, and it is not disputed he could have requested supervised access to the network but chose not to make a request. Third detriment: full suspension

[100]Several the points made by the Tribunal in relation to the partial suspension are relevant also to the full suspension. Given the factual matrix and Tribunal’s conclusion that there was no conspiracy; the decision to suspend was taken by Bill Harrop (who had informally been made aware of the claimant’s appointment to chair of UCU liaison committee) because the claimant was facing allegations of gross misconduct and was due to return to work after his holiday. The Tribunal finds this was the sole reason for the full suspension, and it had no causal connection with the claimant having allegedly challenged the principal at the July principals briefing. There was no causal connection with the fact the claimant was to take up the position of chair of UCU liaison committee, or the claimant’s perception of his own prominence (a view disputed by the respondent’s managers who did not see the claimant in this light) in raising grievances or for the avoidance of doubt, any union activity carried out by the claimant. Fourth detriment: two breaches of confidentiality

[101]The first alleged breach of contract took place on 17 September 2015, the second on 9 December 2015 after the claimant had been summarily dismissed for gross misconduct. With reference to the issue of time limits the Tribunal found the first alleged breach of contract was in time, the referral to ACAS EC took place on 20 October 2015, early conciliation ended on 20 November 2015, and proceedings lodged on 18 December 2015. The second alleged breach of contract was issued within the primary statutory time limit.

[102]With reference to the issue concerning whether the claimant was subject to a detriment by an act, or deliberate failure to act on the part of the respondent, the Tribunal found on the balance of probabilities that he was not. It found on the information before it the claimant had not presented a prima facie case and there was no satisfactory evidence before the Tribunal that he had been caused any detriment the Tribunal concluding there was no breach of contract. The facts as set out above are Carol Cody, acting in her capacity as the claimant’s union representative, emailed Bill Harrop on 16 September 2015 enclosing an undated letter. She copied the email to 8 recipients, all members of the union liaison committee, including Nina Doran. Bill Harrop responded on 17 September 2015 and copied the same trade union personnel who formed part of the liaison committee, together with Catherine Naylor, HR business partner employed by the respondent.

[103]The evidence before the Tribunal was that the liaison committee were fully aware of the claimant’s employment dispute, and Carol Cody had shared correspondence with it. It is notable Carol Cody in her undated letter copied to the liaison committee divulged personal details concerning the claimant’s health, it referred to the suspension and disciplinary hearing scheduled. Bill Harrop was entitled to assume correspondence in reply was also to be copied to the liaison committee and he did not intend any breach of confidentiality in so doing. It did not cross his mind confidentiality was an issue in this context, and even had the Tribunal found he had breached confidentiality it would have gone to find there was no detriment to the claimant as the liaison committee were fully aware of his case, and further, Bill Harrop’s decision to copy the same recipients was not intended to prejudice or cause the claimant a detriment because of his trade union activities.

[104]Turning to the second alleged breach of contract, the Tribunal finds the email sent 9 December 2015 to all staff was not a breach of the claimant’s right to confidentiality. The respondent was concerned that the campaign run by the union on behalf of the claimant had not been responded to and as far as their employees were concerned only one side of the story had been given. The Tribunal accepts the claimant’s submission that there was potentially a breach of contract, but only if he had remained an employee. Given the fact the claimant had been summarily dismissed, no such duty of care was owed to him. The claimant submitted the duty of care relating to confidentiality continued until appeal; the Tribunal did not agree. The claimant, who has referred to case law in support of his claim, has not referred to any decision clarifying whether post-termination an ex-employee is owed the duty of confidentiality in circumstances where the employment contract was brought to an end as a result of the employee’s breach of contract.

[105]If the Tribunal is wrong on this point, and had the claimant been owed a duty of confidentiality after termination in the particular circumstances of this case, it would have gone on to find the 9 December 2015 communication did not breach the claimant’s confidentiality because of the campaign and misinformation already in the public domain. All the information set out in the 9 December 2015 communication was already in the public domain and no detriment had been caused to the claimant. The Tribunal accepted the evidence of Bill Harrop that the sole determining factor for his decision to release the 9 December 2015 missive was to protect the respondent’s reputation from information already in the public domain and there was no link to the claimant’s trade union activities or the fact he was a trade union representative. The claimant was not prevented or deterred in taking part in the activities of an independent trade union or penalised for so doing by the 9 December 2015 communication, when the claimant was no longer acting in the capacity of a trade union representative in the respondent’s business even though he remained a trade union member.

[106]In conclusion, the claimant was not subject to a detriment by an act, or deliberate failure to act on the part of the respondent. He was not prevented or deterred in taking part in the activities of an independent trade union at an appropriate time, or penalised for so doing and the main purpose of Bill Harrop’s decision to issue to 9 December 2015 communication was not to subject the claimant to a detriment, or prevent, deter or penalise him for seeking to become a union member, taking part in union activities or making use of union services. The claimant submitted the appeal had been tainted by the 9 December 2015 email. The Tribunal held, based on the evidence before it, the appeal decision was unaffected by the 9 December 2015 email accepting Angela Cox’s evidence that she was unaware of the 9 December 2015 communication prior to hearing the appeal and even if she had been, there was nothing in the email which was not factually correct and set out in the dismissal letter. The facts of the claimant’s dismissal would have been available to Angela Cox, who heard the appeal and the decision she made had no causal connection with the claimant’s union membership or duties. Dismissal

[107]This claim (which was received within the statutory time limits taking into account ACAS EC) involves exclusively an automatic unfair dismissal which does not require the Tribunal to consider the procedural and substantive fairness of the decision and whether it fell within the bands of reasonable responses. Nevertheless, the claimant has taken the Tribunal through the process followed, making allegations of unfairness, for example, the alleged breach of confidentiality prior to the appeal hearing taking place that has been dealt with above. In respect of the respondent’s procedure, on the evidence before it, the Tribunal found in the main it complied with the ACAS Code of Practice, was not unfair and no adverse inference can be raised from any procedural irregularities such as, possibly, Simon Pearce hearing the disciplinary. The issue before the Tribunal is whether the reason for the claimant’s dismissal was due to his trade union activities or not, the burden of proof being on the claimant to establish this. The claimant has failed to discharge this burden, and the respondent has provided, on the balance of probabilities, evidence that the reason for the claimant’s dismissal was solely as a result of his gross misconduct.

[108]A number of submissions were made by the claimant concerning his dismissal as set out and dealt with above. The Tribunal explored the issue raised by the claimant in respect the objectivity and independence of Simon Pearce and his decision-making process in an attempt to ascertain whether the reason for the claimant’s dismissal was due to his trade union activities or not, and it considered the explanation given by Simon Pearce looking to see if it was tainted by the claimant’s trade union responsibilities and activities, concluding that it was not.

[109]The claimant submitted Katie Spall reported her concerns about him to Simon Pierce who then became “increasingly concerned” the claimant was “unfairly targeting Katie and bullying her” in 2014, and this affected adversely his decision making process against the claimant. In 2015 the claimant raised a grievance against Kate Spall dated 18 June addressed to Simon Pierce, and Simon Pierce arranged for Bill Harrop to respond. In cross-examination when it was put to Simon Pierce he should have recused himself, Simon Pearce responded the claimant knew he was to hear the case and had not mentioned any conflict, nor did he ask Simon Pierce to recuse himself, and this evidence was not disputed. The Tribunal accepted Simon Pierce, as Kate Spall’s manager, was aware of some matters concerning the claimant but had distanced himself. The Tribunal took the view that Simon Pierce’s knowledge of the claimant did not compromise his impartiality and the claimant was given the opportunity to put forward all his arguments in full at the disciplinary hearing. The claimant’s problem was he could not argue against the fact that he had told a lie on the application form, however hard he might try, and Simon Pierce did not believe or trust him. Simon Pearce was entitled to take this view. Procedurally, given the size and recourses of the respondent it may have been preferable for Simon Pearce not to have dealt with the disciplinary hearing, and the claimant’s argument in this regard may have some merit. However, this observation does not assist him given the nature of the complaint before the Tribunal.

[110]Simon Pierce set out reasons for his decision to dismiss in a detailed 5- page letter which referred to the claimant’s evidence and the investigation conducted by Damien Kilkenny, evidence Simon Pierce tested given the claimant’s argument that the only reason for the disciplinary was his trade union activity. He questioned Viv Lacey and found her to be an honest witness. The claimant made much of the fact Simon Pierce had made no record of the interviews, arguing that as there was no record the interviews had not taken place. The Tribunal accepted Simon Pearce’s evidence on cross-examination that the interviews had taken place as described. Simon Pierce explained how Viv Lacey said nothing different to the evidence she had given during the investigation process, and he believed her. The Tribunal accepted this evidence as credible; however, it would have been preferable had contemporaneous notes been taken of the discussion and copied to the claimant before the decision to dismiss was made but nothing hangs on this. This omission does not assist the claimant, the Tribunal taking the view Simon Pearce was entitled to believe what Viv Lacey had to say concluding ultimately the claimant had committed the act of gross misconduct, Simon Pierce held a genuine belief that he had done so, based on uncontroversial and clear evidence from a number of sources, not least Salford University. Had this been a section 94 ERA unfair dismissal claim the Tribunal would have found the decision to dismissal fell well within the band of reasonable responses open to a reasonable employer. The Tribunal finds there was no causal connection between the dismissal and the claimant’s trade union activities or membership. The claimant had failed to disclose to the respondent the true reason for the termination of his employment, concealing the fact he had been dismissed despite the clear warning on the application form.

[111]The claimant submitted he was not obliged to disclose his own wrongdoing when completing the respondent’s application form. He put forward in argument the basic rule that employees are under no obligation to disclose their own breaches of duty committed in the course of employment to their employers and referred the Tribunal to Bell v Lever Brothers Ltd

[1932] AC 161

, HL. In that case the House of Lords held that a chairman and vicechairman of a subsidiary company were not liable to repay compensation they had received following a corporate reorganisation on account of the fact that the parent company had subsequently learned they had engaged in secret and unauthorised private speculations during their employment. Lord Atkin stated: ‘I agree that the duty in the servant to protect his master’s property may involve the duty to report a fellow servant whom he knows to be wrongfully dealing with that property. The servant owes a duty not to steal, but, having stolen, is there superadded a duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from the wellestablished usage of mankind and would be to create obligations entirely outside the normal contemplation of the parties concerned.’

[112]The principle was followed by the Court of Appeal in Sybron Corporation and anor v Rochem Ltd and ors

1983 ICR 801

, CA, to which the Tribunal was referred to by the claimant. The Tribunal accepted Dr Duke’s argument that an employee is not required to disclose his or her own misconduct to the employer, although there may exist a duty to disclose the misconduct of colleagues which is not an issue in this case. In those circumstances, the duty to disclose would be unaffected by the fact that, in complying with it, the employee incriminates him or herself. In Sybron the employee had sought to retain advantageous pension rights in circumstances where he had failed to disclose his own involvement in a major fraud. The Court of Appeal ruled that, given his position as a senior executive, the employee was under a duty to report the fraudulent misconduct of subordinates, even though this would inevitably reveal his own misconduct.

[113]The claimant also referred to Item Software (UK) Ltd v Fassihi and ors

2005 ICR 450

, CA, in which the Court of Appeal held that Bell v Lever Brothers (above) was ‘not authority for the proposition that there are no circumstances in which an employee can have a duty to disclose his wrongdoing’. However, that case was decided primarily on the basis that F, being a director subject to fiduciary duties, owed a positive duty to disclose any breaches. It was held directors owed a duty to disclose their own wrongdoing as part of their overall duty of loyalty and good faith. The Court of Appeal did not expressly consider whether that duty extended to and applied equally to employees, although it did state that a director’s duties are more onerous than those placed on an employee.

[114]The claimant relied on the EAT decision in Basildon Academies v Amadi and anor EAT 0342/14, where it held that there was no implied contractual obligation on a tutor to inform the school at which he worked parttime that an allegation of sexual assault had been made against him by a pupil at another school where he also worked. The EAT considered that, following Fassihi, there may be circumstances in which an employee can be under a duty to disclose his or her own misconduct. However, it is clearly not the law that an employee must disclose to his or her employer any allegation of impropriety, however ill-founded. Dr Duke argued there was no contractual basis for him to report to the respondent the true reason for his dismissal from Salford University. The Tribunal accepted there may not have been an obligation in contract for the claimant to disclose the fact he had been dismissed for harassing a work colleague, he was however obliged to tell the truth and was made aware in no uncertain terms failing to do so could result in disciplinary action being taken. It was not true that the claimant’s annually renewable contract had not been renewed.

[115]The Tribunal has considered the claimant’s legal arguments and concludes they have little if any merit. His case can be differentiated from those set out above. The claimant was required to answer the questions set out in the application form truthfully and he was made aware of the consequences if dishonest answers were given. Confronted with a question on the application form the claimant gave a deliberately false response. He was not dismissed by the respondent because he had been found guilty of gross misconduct by Salford University; he was dismissed because he had lied. All the claimant was required to do was tell the truth. Had he completed his application form confirming that he had been dismissed with no other information given, he could not have been dismissed by this respondent for gross misconduct. The claimant’s problem is that had he set out the true position the reasons for his dismissal may have been explored and his application would likely have been unsuccessful; thus, he felt he had no option as indicated by his trade union representative during the disciplinary process.

[116]The claimant submitted Angela Cox at the appeal hearing stated that non-disclosure and dishonesty were one and the same, he maintained the law had been misinterpreted and HR’s advice on this should have been obtained, therefore a perverse decision was made in respect of the appeal. The Tribunal did not agree; Angela Cox confirmed the issue before her was not one of disclosure but dishonesty on the application form.

[117]Turning to the claimant’s submissions concerning members of the HR team acting as investigating managers and co-authors, the Tribunal did not accept this to be the case. The claimant referred the Tribunal to Ramphal v Department for Transport 2015 ICR D23, an EAT judgment. G was appointed to carry out an investigation and his first draft report found that the alleged misuse was not deliberate and R had plausible and consistent explanations for his excessive fuel expenditure. G’s recommendation was for a finding of misconduct, with the sanction of a final warning. Over the next six months, the draft report went back and forth between G and the HR department, leading to favourable comments being replaced by critical ones, the view of culpability changing from misconduct to gross negligence and the sanction changing from a final written warning to summary dismissal. The EAT allowed R’s appeal and remitted the case for reconsideration in the light of the Supreme Court’s decision in Chhabra v West London Mental Health NHS Trust

[2014] ICR 194

, SC. The Supreme Court held that an employer had acted in breach of an employee’s implied contractual right to a fair process, as well as an express undertaking, where a human resources manager had unduly influenced a case investigator’s report. The Supreme Court clarified that it would be legitimate for HR to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and to achieve clarity, but not to go beyond that. In Ramphal the EAT’s view was the representations from HR went beyond giving advice on procedure and clarification and appeared to have led to the reshaping of G’s views. HR had involved itself in issues of culpability, which should have been reserved for G. The changes to the report were so striking they gave rise to an inference of improper influence and the employment judge should have given clear and cogent reasons for accepting that there was no such influence. The EAT stressed that while an investigating manager is entitled to seek advice from HR, such advice must be limited to questions of law, procedure and process. HR must avoid straying into areas of culpability or the appropriate sanction, except insofar as the advice addresses issues of consistency. The Tribunal was of the view there was no satisfactory evidence of any such influence improper influence by HR in the case of Dr Duke.

[118]The claimant submitted Kath Marshall established the Gary Duke in question was the claimant, and once she had done this the matter should have been left to an investigating officer. The Tribunal’s view is that Kath Marshall established some preliminary facts via Salford University and the earlier Employment Tribunal judgment to determine whether there was anything to investigate and a possible case to answer. Damian Kilkenny carried out the subsequent and detailed investigation. The practice by HR of partially drafting letters, conclusions and giving advice in respect of this was not an issue and did not give rise to improper influence, providing HR had not strayed into areas of culpability. There was no satisfactory evidence HR were behind the decisions made by Simon Pierce and Angela Cox. The Tribunal took the view neither Simon Pierce or Angela Cox would have been manipulated by HR, and both arrived at the conclusions they did independently to HR, based on the evidence before them and the inescapable fact that the claimant had not told the truth. The Tribunal did not accept the disciplinary process was a “sham” as submitted by the claimant for the reasons set out above. It is clear from the disciplinary and appeal outcome letters all the issues raised are addressed at an exhaustive length, reflecting the seriousness in which the task was approached, the thoroughness and objectivity that took place and there is no suggestion the decisions were influenced by anybody from HR or by the fact the claimant was a trade union representative and involved in trade union activities.

[119]The claimant relied on decision of the ECHR in Sourguc v Turkey [23.09.2009] concerning freedom of expression/speech which the Tribunal found as not relevant to the issues it had to decide in this case, likewise, the High Court decision in Dr Gary Duke v The University of Salford

[2013] EWHC 196

to which it was also referred. The claimant’s submission relating to freedom of speech and his reference Sorguc is irrelevant. Freedom of speech and academic freedom had no bearing on the respondent’s decision to dismiss the claimant for gross misconduct as a result of him lying on the application form.

[120]In conclusion, the reason for the claimant’s dismissal was due to his act of gross misconduct and not trade union activities or trade union membership. The claimant was not automatically unfairly dismissed on trade union grounds, his complaint of automatic unfair dismissal is not well-founded and the claim brought under S. 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 is dismissed. The claimant was not prevented or deterred in taking part in the activities of an independent trade union at an appropriate time, or penalised for so doing. The respondent’s sole or main purpose in its dealings with the claimant as set out above was not to prevent, deter or penalise the claimant for his union membership, taking part in union activities or making use of union services. The claimant was not subjected to a detriment on trade union grounds; his complaint of detriment brought under S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is not well-founded and is dismissed.

[1]The claimant applied for reconsideration by email sent 28 August 2017 on the basis that it was in the interests of justice for the Tribunal to reconsider its Judgment and Reasons promulgated on 15 August 2017 (“the promulgated Judgment”) because it had failed to “give proper weight to the facts.” He indicated the reconsideration was necessary in order that an appeal could be lodged with the EAT.

[2]In addition to the 24-page document setting out the grounds for reconsideration, the claimant has also produced written submissions that ran to 19-pages and made lengthy oral submissions in support of his application, which the Tribunal took into account. The claimant wished the Tribunal to take judicial notice of the fact that he had made an application for EJ Shotter to recluse herself on the basis of bias, which was refused by the Judge earlier whose decision is now being appealed at the EAT. It was pointed out to the claimant the promulgated Judgment and Reason were arrived after a joint decision-making process and the Tribunal was unanimous in respect of this.

[3]The claimant’s arguments on reconsideration were not always easy to follow; and for this reason, we have attempted to set out and paraphrase our understanding of the arguments without repeating every single point that has been made. We would like to thank the claimant for providing us with copies of all the case law he referred to, and clarifying what paragraphs he relied upon. The law on Reconsideration

[4]An Employment Tribunal judgment can be challenged by seeking a ‘reconsideration’. Rules 70–73 of the Employment Tribunal Rules of Procedure (‘the Tribunal Rules 2013’) contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237 (‘the Tribunal Regulations’) set out the procedure for tribunals to ‘reconsider’ judgments.

[5]Rule 70 of the Tribunal Rules 2013 provides an Employment Tribunal with a general power to reconsider any judgment where it is necessary in the interests of justice to do so. This power can be exercised either on a Tribunal’s own initiative or on the application of a party. Rules 71–73 set out the procedure by which this power can be exercised. Only a ‘judgment’ can be reconsidered using this power.

[6]There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation. Reconsiderations are thus best seen as limited exceptions to the general rule that Employment Tribunal decisions should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a second bite of the cherry and they are not intended to provide parties with the opportunity of a re-hearing at which the same evidence can be rehearsed with different emphasis, further evidence adduced which was available before or case law to which the Tribunal had not been taken to, for whatever reason. This is an important aspect in Dr Duke’s application in which he attempts to re-open and litigate evidence heard at the liability hearing.

[7]Under rule 70 of the Tribunal Rules 2013, a judgment will only be reconsidered where it is ‘necessary in the interests of justice to do so’. This ground gives an Employment Tribunal wide discretion, but it does not mean that in every case where a litigant is unsuccessful he or she is automatically entitled to a reconsideration: it can be used to correct errors that occur in the course of proceedings. It is irrelevant whether a Tribunal’s alleged error is major or minor taking into account the overriding objective to deal with cases justly and the interests of justice to both sides. This is also particularly relevant to the claimant’s application, as he is attempting to re-argue the case, formulating a number of arguments, both those previously used and new ones, possibly due to his own inexperience.

[8]The claimant has made reference to various Articles of the European Convention on Human Rights (ECHR). The Tribunal recognises that interests of justice must be exercised consistently with the right to a fair trial under

Article 6(1) ECHR

, which is incorporated into UK law by the Human Rights Act 1998, and it has taken this into account.

[9]Upon reconsideration of a judgment, the Employment Tribunal (as the case may be) may confirm, vary or revoke the original decision and, if revoked, the decision may be taken again — rule 70. The claimant’s grounds

[10]First ground: Burden of proof 10.1 The first ground, burden of proof, was withdrawn at the hearing and there is no requirement to consider this issue. It is notable that the claimant intended to refer to case law and arguments that had not previously been raised at the liability hearing and he continued throughout his application to bring up new arguments on a number of matters, supported by case law to which the Tribunal had not been referred to at the liability hearing. The reconsideration process is not the vehicle by which the claimant can expect to clarify or bring in new arguments. There must be finality in the litigation process.

[11]Second ground: Time limit/out of time claim11.1 With reference to the claimant’s reliance on the EAT decision in Hale v Brighton and Sussex University Hospitals NHS [2017]

UKEAT/0342/16/LA

, a decision that could not have been before the Tribunal at the liability hearing; this was a different argument on time limits to those produced by the claimant at the liability hearing.

11.2 The claimant submitted that the act undertaken by Bill Harrop in asking Laura Firth to report back details of any impromptu meeting was an instruction to monitor which was never rescinded and ended with the claimant’s dismissal. This, he argued, can be compared to the situation where the respondent created a state of affairs with reference to disciplinary proceedings as set out in Hale. Consequently, the conduct extended over a period and brought the first claim within the statutory time limits.

11.3 It was the Tribunal’s view the decision in Hale can be differentiated from the claimant’s case, in that the act by Bill Harrop was a one-off act and not a continuing state of affairs as alleged by the claimant. There was no evidence at the liability hearing that Laura Firth reported back to Bill Harrop on any further impromptu meetings held in the staff room or otherwise. It was not part of a series of actions under the disciplinary process, and is a standalone act. Further, this is a new argument that was not put forward at the liability hearing. A reconsideration hearing is not the vehicle by which a disappointed litigant can make good the deficiencies in how they ran the case or dealt with issues such as time limits.

11.4 The claimant also submitted he had taken out a grievance about the instruction to “monitor” that had not been concluded before the ET1 was lodged, and it was unfair for the Tribunal to hold this part of the claim was out of time given the respondent controlled the grievance process timetable.

11.5 The claimant complained that the Tribunal had raised the issue of time limit after all witnesses had given their evidence. He argued; under the overriding objective the Tribunal should have dealt with the issue of out of time claims either at the preliminary hearing dealing with case management or prior to hearing the facts at liability stage on the basis that in not doing so, the Employment Tribunal allowed “costs to rack up.” Further, the sift process did not consider it out of time and nor did the respondent apply to have that part of the claimant struck out at any time. The claimant did not accept the respondent’s position on this issue was justified, namely, that the approach taken was usual in Tribunals, in that generally, evidence needs to be heard in full before a determination can be made.

11.6 Finally, the claimant argued it was “odd” the out of time point should be “raised” he referred to the costs hearing and indicated the Tribunal’s decision to hear all of the evidence before considering time limit issues was incorrect and an error in law.

[12]The Tribunal revisited a number of documents, including its notes of the hearing and the claimant’s original written submissions when considering this issue. It is notable time limit and jurisdiction was raised as a possible issue by the Tribunal when it became apparent after it had heard all the evidence, that the first detriment alleged by the claimant may be out of time. Accordingly, the position was explained to the claimant who was invited to deal with that issue, which he attempted to do in written submissions.

[13]On reading those submissions the issue of time limits in relation to detriment 1 was explained again, as it had become apparent to the Tribunal the claimant had little understanding. He was arguing his amended claim had been accepted by the Tribunal and it must therefore have been in time. The Tribunal took the unusual step of providing the claimant with an IDS Handbook which set out the law on time limits having first obtained the respondent’s agreement, and the matter was adjourned to allow the claimant (who had put himself out as experienced in legal matters and the law) time to get his arguments together before making oral submissions. The claimant then proceeded to make oral submissions on time limits, which the Tribunal took into account.

[14]It is notable the claimant’s submissions on time limits given at the liability hearing related to the date of his knowledge and reasonable practicality. The claimant stated with reference to the note on his file “I only came to know abut it end of October, beginning of November [following] a subject access request, the 4th November 2015 – I wasn’t aware of the detriment in June and it was not reasonably practicable to bring the claim. The claimant referred to “S.145(C)” in the IDS Handbook.

[15]The claimant at this reconsideration now seeks to bring fresh arguments on this issue in the hope that he will be given a second bite at the cherry so as to persuade the Tribunal to accept it has the jurisdiction to consider the first detriment claim. In addition, the claimant in his reconsideration application seeks to re-argue the evidence; the Tribunal made a finding of fact having heard all of the evidence, that there was no continuing act and the claimant seeks to set this aside. His argument at the reconsideration hearing was the Tribunal was wrong in law on the basis that the request by Bill Harrop to Laura Firth “let me know directly and immediately if there is any repetition please” can only reasonably be interpreted as a request to monitor, this was an ongoing act to dismissal and therefore the claim was within time. The claimant did not argue this point at the liability hearing and reconsideration is not the means by which to bring in new arguments. Paragraph 92 of the Judgment sets out the Tribunal’s position.

[16]The claimant did not argue previously that as he had raised a grievance alleging that his union activities were being monitored the expectation was that the grievance should have been heard before the ET1 was lodged, and this was a continuing act that brought detriment 1 in time. He submitted the grievance outcome was given on 24 February 2016, and the detriment allegations were “reasonably” included in the ET1. The Tribunal took the view that this was again a new argument, not previously before it. Further, the grievance did not form part of the alleged detriments claim and one therefore questions how it can be a continuing act.

[17]In conclusion, the original decision on time limits is confirmed and the claimant’s application to revoke this is unsuccessful and dismissed.

[18]Third ground: Lex 5718.1 The claimant averred the Tribunal had erred in its consideration of the evidence before re-arguing what facts the Tribunal should have arrived at and did not. The claimant complained the Tribunal gave no weight to the fact Bill Harrop conducted no investigation before he arrived at view employees had been involved in unlawful union activity.

18.2 The claimant maintained the Tribunal had erred in law, in logic and in its interpretation of the facts in a number of ways, for example, in suggesting that as the Lex 57 were all treated in the same way (i.e. because no disciplinary actions was taken against any of them) that the actions of the respondent were reasonable. He stated the Tribunal had shifted the burden of proving that the unlawful actions were lawful on the claimant instead of confining itself to making findings of facts.

[19]It was difficult for the Tribunal to follow the claimant’s argument, and he appeared to be seeking a re-hearing and going over his version of the evidence as opposed to the Tribunal’s findings of facts reached after it had heard from all the witnesses, decided on whose evidence it preferred and taking the claimant’s views into account. The Tribunal considered all of the written and verbal evidence, and gave reasons why it preferred that given on behalf of the respondent to that of the claimant. Bill Harrop had adopted a pragmatic approach and he was not disregarding statutory or contractual requirement in that course of action as now alleged by the claimant.

[20]The claimant attempted to clarify his position in oral submissions, maintaining the Tribunal had “just accepted” Elaine Bowker’s and Bill Harrop’s word with no evidence to support it, and had then substituted opinions for facts. In short, the claimant’s argument appears to be thus; if Bill Harrop truly believed it was unlawful he was duty bound to investigate every person to whom a letter was sent and dismiss the claimant during his probation period. Repeatedly throughout oral submissions the claimant referred to Bill Harrop’s “propensity” for ignoring statutory obligations and disciplinary procedures, and argued that his credibility was undermined by this “propensity”.

[21]The Tribunal found Bill Harrow, an experience HR professional who enjoyed a working relationship with the unions, intentionally did not to go down the disciplinary and investigation route at the time. Instead he chose the less draconian and destructive path of having a discussion with the upper echelon of the union with whom he had established a relationship over a period of time. It may be the case the claimant, through his inexperience, fails to recognise and/or misunderstood what happens in industrial relations within the workplace as evidenced at the liability hearing and this reconsideration; it is “normal” industrial practice for management and unions to talk and avoid a damaging course of investigations, disciplinary hearings and appeals which all take up time when a quiet word could resolve the situation more satisfactory.

[22]The claimant also submitted “lecturers are not like other employees, they have freedom other workers do not have,” and referred the Tribunal to S.202(2)(a) of the Education Reform Act, and Sorguc v Turkey, the latter to which the Tribunal were taken to at the liability hearing, and found it was not relevant. The Tribunal remains of this view and paragraph 119 in the promulgated Judgment dealt with this point. The claimant’s position appears to be that as a lecturer he can say and do whatever he perceives to be justified or appropriate as long as it is not what he regards to be unlawful. The Tribunal took the view that its assessment on freedom of speech and the LEX 57 protest/demonstration within that context, was not relevant to the issues before it, and had the respondent investigated and disciplined individuals (as suggested by the claimant) it was possibly at that stage freedom of speech may well have been an argument the claimant could have put forward. As there was no investigation or disciplinary this is irrelevant. Fourth ground: Facebook incident

[23]The claimant in oral submissions agreed this was not part of the claim but went to Bill Harrop’s credibility and “propensity” to ignore academic freedom and legislation. The claimant argued he was disciplined and this goes to the credibility of Bill Harrop and the respondent wished to silence any debate. The claimant maintained the Tribunal was wrong in law and was bound to follow the law and give academic freedom weight.

[24]These arguments were duly considered and dealt with at the liability hearing. The Tribunal took these arguments into account when it arrived at its findings of facts, and reconsideration is not the means by the claimant can re-argue his point in order to further persuade the Tribunal to accept them and reject the respondent’s arguments. The Facebook incident was not an alleged detriment and whether or not it gave rise to issues of academic freedom was irrelevant to the claimant’s claims. The Tribunal made it clear at the liability hearing it would not be entering any academic discourse on academic freedom, and the Tribunal remains of this view at the reconsideration hearing.

[25]Fifth ground: Trade union detriment 1- s.146(1)(b) TULR(C )A 1992 Impromptu union meeting25.1 In written submission the claimant referred to undisputed facts that he discussed union issues with members in their lunch break and this was considered to be “inappropriate” by Bill Harrop and Laura Firth. The claimant maintained the Tribunal had substituted its own opinion for the facts as no investigation had been carried out i.e. it should have found without an investigation the respondent was not in a position to conclude that a union meeting in the lunch hour with staff present who did not want a union meeting was inappropriate.

25.2 The problem for the claimant was that no disciplinary action was taken or even considered. The Tribunal took the view, after hearing the evidence at liability stage, there was no requirement for an investigation Bill Harrop having taken the decision that following complaints made by staff concerning the impromptu union meeting during lunch break in the staff room, to have an informal discussion with Nina Doran on the basis that she would then communicate on such matters to the claimant and Ms Cody.

25.3 The claimant also complains the Tribunal erred in law when it concluded there was no requirement for the individual names of the disgruntled employee(s) who complained to be obtained and divulged for the claimant. The claimant, finessing his argument, relies upon Article 6 HRA 1998, the respondent’s grievance policy and procedure and bullying and harassment policy, submitting they were contractual obligations in law which had been breached by the respondent’s actions.

[26]The Tribunal found no grievance or complaint of bullying and harassment was raised by the disgruntled employee(s) who were unhappy with an ad hoc union meeting taking place in their lunch hour, and therefore no formal investigation was required. The matter was dealt with informally in yet another attempt at good industrial relations. It is not for the claimant to insist on an investigation when no grievance has been raised. Accordingly, there was no requirement for the names to be divulged to the claimant and that was the Tribunal’s finding following the liability hearing.

[27]The Tribunal understands that the claimant’s argument to be; if he was holding a legitimate union meeting in the staff room in his lunch time with people who may or may not be union members present, then Bill Harrop should have done more to establish the facts in the case. The claimant’s view was that he was entitled to hold a meeting to discuss union matters in his own time. Bill Harrop’s position was that it was outside agreed protocols, people complained, he took the view it was inappropriate and communicated this to Nina Doran. If Nina Doran had not believed the claimant had gone outside agreed protocols one would expected Bill Harrop to have been challenged by her, and he was not at the time or subsequently. The evidence before the Tribunal was she had discussed the matter at least with Carol Cody. There was nothing for Bill Harrop to investigate.

[28]The claimant argued the note on the claimant’s personnel file was a sanction. The Tribunal did not agree; a note that something has happened is not a disciplinary sanction. The reference in the note to the effect that should the claimant repeat his behaviour in the future he could face a disciplinary is not a disciplinary sanction. The Tribunal did not accept this was a disciplinary sanction, formal or informal as maintained by the claimant at the reconsideration hearing. It is acceptable industrial practice for the head of HR to contact a senior union official to discuss and clarify how union activities are or are not carried out at lunch time in a staff room. It is not unusual for a note to be placed on personnel files. This is practical industrial relations practice in the real world, and underlying communications between employers and unions.

[29]The claimant further submitted for the first time the word protocol must be given its Oxford Dictionary meaning and Bill Harrop, who was duty bound to provide the claimant with copes of the protocol, had made them up to deter the claimant when carrying out union activities. The Tribunal took the view not all protocols need to be in writing, and the claimant’s arguments concerning not being provided with any written protocols were not entirely clear; the claimant as a union official could have himself approached Nina Doran concerning agreed protocols, written or otherwise. The Tribunal found in turn Carol Cody had discussed the matter with the claimant. Nina Doran was not called to give evidence on behalf of the claimant.

[30]All of the remaining submissions and observations made by the claimant were an attempt to re-argue the case put forward at the liability hearing and there is no requirement for the Tribunal to deal with each and every point. It considered the claimant’s submissions at liability stage and came to the findings of fact as set out, and for example, it did not find Laura Firth had been asked to “covertly monitor two union officials on a regular basis.”

[31]Sixth ground: Contract of Employment University of Salford31.1 The claimant argued that the Tribunal had accepted the contract between himself and the University of Salford was fixed term. The claimant alleged the Tribunal had then went on to say the contract was extended which the claimant denied was the case. He submitted the Tribunal should have restricted itself to S.97 (1)(c) of the Employment Rights Act by looking at the “black and white of the contract.”

31.2 The claimant maintained the contract did not extend beyond the 31 May 2009 as it had not been renewed, the Tribunal had substituted its opinion for the facts in this matter and could not draw the conclusion that the claimant had “lied” on his application form. The claimant maintained in the application form he was “simply stating the conditions, the black and white of the contract.” He clarified that the Tribunal should deal with the “black and white of the contract and ignore everything that took place after 31 May 2009”, and go on to conclude the claimant had not “lied” on the basis that the fixed term contract had not been extended and he was not paid beyond 31 May 2009.

31.3 The claimant also submitted the Tribunal ‘s conclusion that the claimant had lied was at odds with the decision made by Simon Pearce, and the Tribunal was referred to page 481 in the agreed liability bundle which it considered again. The claimant argued that the references to “misleading and dishonest” by Simon Pearce were at odds with the Tribunal’s findings that the claimant had not told the truth. The Tribunal did not agree that Simon Pearce’s reference to the claimant made “it very clear” that the claimant was dismissed for withholding important information” as submitted by the claimant. The letter ran over 5-pages that included a reference to Simon Pearce finding the investigation conducted by Damien Kilkenny was “extremely thorough.” He also wrote “I am entirely satisfied you were dismissed summarily for gross misconduct…this was not the reason given on your application form…I conclude that you did deliberately mislead the college when completing your application form…you did withhold important information regarding the reason that your employment at Salford University ended which I considered to be misleading and dishonest. This conduct amounts to a serious breach of the duty of trust and confidence.”

31.4 The claimant reiterated his arguments that had been before the Tribunal at the liability hearing that there was no obligation for him to disclose the summary dismissal, and there was no express or implied term asking him to confirm whether he had been dismissed. The Tribunal was again referred to Basildon Academies v Amadi & Fox

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, which it dealt with in the promulgated judgment and reasons at paragraphs 114 and 115.

[32]The contract issue is a key matter for the claimant, and the Tribunal has visited its findings in detail. The Tribunal found the claimant was issued with appointment letters dated 23 October 2008 and 9 March 2009 with an end date of 31 May 2009 at the latest. The claimant issued ET proceedings on 5 October 2009 in respect of his dismissal on 6 August 2009. Had the claimant’s last day of service been 31 May 2009 his application would have been substantially out of time. The judgment of the ET makes it very clear the claimant was an employee up until his summary dismissal on the grounds of gross misconduct.

[33]A number of documents were before Simon Pearce acting in his capacity as dismissing officer, including a letter from the University of Salford dated 31 July 2015 confirming the claimant had been dismissed and the Employment Tribunal’s reserved judgment in case number 2410442/2009 promulgated on 16 November 2011. The Reasons recorded by a claim form received 5 October 2009 the claimant brought a claim of unfair dismissal following his dismissal by the respondent on 6 August 2009. Simon Pearce concluded the claimant’s employment must have come to an end on 6 August 2009 and not 31 May 2009.

[34]The claimant’s job applications stated; “Please answer truthfully. If any information is found to be false at any point in the future it could result in disciplinary action.” Under “work history” the claimant set out the University of Salford 2007-2 and 2009-8, 2009-2 to 2009-8. Both show termination (for whatever reason) at August 2009 and not May 2009. Under “reasons for leaving” the claimant set out; “part time position with annually renewable contract wasn’t renewed by employer.” The claimant made no mention of the 31 May 2009. The claimant intends that the Tribunal, unlike Simon Pearce who made the decision to dismiss, ignore all of this information, and concentrate exclusively on his written contract. This is unrealistic and wrong in law. The written terms of the contract did not reveal the true picture. Further, all of this information was before Simon Pearce and the appeal hearing officer when they decided to dismiss and confirm the dismissal. The Tribunal, having heard the oral evidence and considered the contemporaneous documentation, was satisfied with their motivation and the lack of any causal connection to the claimant’s union activities.

[35]In oral submissions the claimant maintained a written contract can only be extended in writing, and there was no oral agreement that the contract was extended by 31 May 2009, therefore the contract did not extend to 6 August 2009. The claimant’s argument made no sense given the factual matrix.

[36]Ss.95(1)(b) and 136(1)(b) ERA provide that an employee will be treated as dismissed if he or she is employed under a limited-term contract and the contract expires by virtue of the limiting event without being renewed under the same terms. The position is therefore that where an employee’s fixed-term contract expires without being renewed, this amounts to a dismissal for the purposes of unfair dismissal, on the claimant’s argument this would have been 31 May 2009.

[37]The facts do not support this view. If the claimant’s fixed term contract ended on 31 May 2009 in accordance with the contract, how could he then be dismissed on 6 August 2009? The Tribunal does not know how the fixed term contract was extended with the effect that there was no break in continuity of service until the claimant, on his own admission, was dismissed in august 2009. Clearly, there was no gap that breaks continuity between the contracts because the claimant was able to issue proceedings for unfair dismissal. It is well-recognised that continuity will similarly be preserved if an employee is dismissed (i.e. on 31 May 2009) and then promptly re-employed. A contract can be extended in a number of ways, including a contract rolling over by the actions of the parties. Had Salford University simply decided not to renew the claimant’s contract on 31 May 2009 the effective date of termination would have been 31 May 2009 and not the 6 August 2009, the claimant would have been either out of time or without sufficient continuity of employment, He was neither, and it was reasonable for those managers from the respondent hearing the claimant’s arguments on this to reach the conclusion that he was not telling the truth; they had incontrovertible documentation by which to do so.

[38]The claimant repeats the unconvincing arguments heard at the liability hearing and ignores the detailed findings, including those on the issue of credibility, made by the Tribunal. The Tribunal cannot turn a blind eye to all of the relevant facts in this case, and more importantly, the respondent took into account the fact that the claimant had confirmed his annually renewable contract with Salford had not been renewed in August 2009 when his dismissal was unconnected with the expiry of a fixed term contract.

[39]Seventh ground: Partial suspension39.1 The claimant submitted that the question for the Tribunal was whether partial suspension was a reasonable step under S.97 of the ERA, the Tribunal had erred in law because there was no contractual provision for partial suspension and the Tribunal had given the respondent the green light to act ultra vires.

39.2 The claimant further argued suspension of his access to the IT systems caused him a detriment and the Tribunal had given no weight to this, paragraph 99 of the promulgated Judgment was irrelevant and it had wrongly concluding that supervised access could have been requested when it was limited to full suspension only.

39.3 The claimant also submitted the Tribunal should not have accepted there was an economic advantage because there was none, suspension was meant to be a neutral act and motivation of financial gain was contrary to law and the Disciplinary Procedure. This was a new argument brought by the claimant.

39.4 Finally, the claimant argued the Tribunal was wrong to accept Kath Marshall’s evidence that suspension was necessary for the protection of the respondent at face value because there was no evidence the claimant was a threat. The Tribunal had failed to ask itself what was in the mind of Kath Marshall and Bill Harrop when they acted ultra vires, breached procedures and acted in breach of his Human Rights.

[40]The Tribunal did not accept that the S.97 ERA issue was the question it should have asked itself; it considered whether the claimant had been caused a detriment not having access to IT whilst on holiday, and the respondent’s motives for partially suspending the claimant concluding there was no causal connection with the claimant’s union activities. The Tribunal accepted the reason given by the respondent that they made the decision on the basis that the claimant was using his holiday entitlement and they did not need to suspend fully as neither he nor students were on the college premises. This saved the respondent money in that the claimant, who was on holiday, then used up his holiday entitlement.

[41]The claimant submitted the Tribunal had given no weight to the fact that his union activities on a day-to-day basis had been impacted. The claimant was on holiday and he gave no evidence to the Tribunal as to how his union activities had been affected; the claimant made a broad-brush allegation. The Tribunal found there had been no detriment, and even if it was wrong on this point, it found the claimant failed to establish causation given the factual matrix set out in the promulgated Judgment.

[42]The claimant raised similar arguments to those he had presented the Tribunal with at the liability hearing, which the Tribunal does not intend to consider again. He referred to the decision in Simon Agoreyo v London Borough of Lambeth QB/2017/0022 arguing both suspensions were a “knee jerk” reaction and a default position. The problem for the claimant was this; even if the suspension was the respondent’s default position and/or a knew jerk reaction (which the Tribunal did not find) the claimant was suspended directly as a result of the Salford University summary dismissal coming to the attention of the respondent, and there was no causal connection with his union activities.

[43]Mrs Skeaping on behalf of the respondent, addressed the claimant’s argument that suspension was not a default position; she submitted before suspension the respondent accessed the information, established it was the claimant, wrote to the University of Salford and looked at the claimant’s job application. The Tribunal reached its findings of facts by reference to the supporting contemporaneous documents and oral evidence as set out paragraphs 95 onwards of the promulgated judgment.

[44]The Tribunal revisited its notes dealing with the motivation behind both suspensions. It noted under cross-examination at the liability hearing Bill Harrop was questioned on the suspension and whether the claimant posed a threat to students, to which Bill Harrop stated he was not aware the claimant posed a threat to students, but “you may have felt bitter and aggrieved and act maliciously towards the college.” In Bill Harrop’s letter of 14 August 2015 referred to at paragraph 65 of the Tribunal’s judgment, there is a reference to the claimant at the investigatory meeting stage causing a breach of trust and confidence. The Tribunal accepted the evidence of Bill Harrop that his concerns were legitimate, the suspension was thought about and considered, it was not a knee jerk reaction and his belief that it was a neutral act. The fact the partial suspension was economically beneficial for the respondent did not undermine the fact it was a neutral act. The Tribunal remained of the view the suspensions had no causal connection with the claimant’s union activity; they followed from his alleged act of gross misconduct and the view taken by Bill Harrop as to how the claimant would react being investigated and possibly disciplined, and the risk to the respondent, was one open to an experienced head of HR.

[45]Finally, on this point, the claimant maintains the Tribunal gave no weight to the act of suspension rendering the claimant unable to keep in contact regularly with union members or attend legitimate trade union meetings on the respondent’s premises, without the claimant giving any evidence of meetings and contact which he was unable to take part in. The clear evidence before the Tribunal is that the claimant could have requested supervised access, for example, to the IT system and he did not. Theoretically, a suspension could affect an employee and their duties as a union official and even had the claimant established he was caused a detriment, the insurmountable problem was one of causation. In short, the claimant was suspended as a result of a gross misconduct allegation being investigated and taken to a disciplinary hearing; there was no causal connection with the claimant being a union member and/or his union activities. The claimant submitted the Tribunal should ignore as irrelevant the fact that there was 20 or so other union official carrying out union duties, including Carol Cody. The Tribunal did not agree. The fact that there were active union officials carrying on with their daily union duties formed the backdrop of the factual matrix; they were able to do so because they had not committed a possible act of alleged gross misconduct. Eight ground: Confidentiality

[46]With reference to the claimant’s arguments on the first breach of confidentiality, the Tribunal found it difficult to understand how there can be a breach of confidentiality when it is not disputed the information was out in the public forum.

[47]The claimant is asking the Tribunal to re-hear evidence and submissions on this point, which was dealt with at length in the promulgated judgment including paragraphs 101 onwards. The Tribunal revisited Carol Cody’s letter dated 16 September 2015 and Bill Harrop’s response on 17 September 2015 in which he referred to the respondent “dealing with an allegation of potential dishonesty which impacts potentially on Gary’s duty of trust and confidence.”

[48]The claimant’s position is regardless of what information was out in the public arena, he was owed a duty of confidentiality by Bill Harrop, who should have ignored the fact that Carol Cody was copying correspondence to a number of union officials. Mrs Skeaping submitted that the law is clear; once the information was out in the public domain there cannot be a breach of confidentiality. The claimant correctly notes the Tribunal were not referred specifically to any law, or cases. The claimant also did not refer the Tribunal to any law. His view was that matters should remain confidential even if they are out in the public domain in accordance with the terms set out in his contract of employment.

[49]The Tribunal’s general understanding is that information, once it is out in the public domain, may no longer need to be kept confidential. If the Tribunal is wrong on this point and confidentiality was breached, the Tribunal found there was no causal connection between the Bill Harrop’s letter of 17 September 2015 and the claimant’s union activities. The Tribunal accepted Bill Harrop’s explanation as set out in paragraphs 101 -103 of the promulgated Judgment. Even if the Tribunal took Bill Harrop’s motivation at the highest and inferred he wished to besmirch the claimant in the eyes of the union; there was no evidence the claimant was caused detriment because the information relating to the allegation of gross misconduct was out in public including the union officials who were copied in to the email by Bill Harrop.

[50]With reference to the second breach of confidentiality, the claimant re-argued his position, maintaining in short, the Tribunal erred in law in that under English law termination of the contract does not release either party from their duties to perform contractual obligations that accrued post termination, even if one party was in breach of contract. The claimant relied on the analogy of wages still being owed and payable after dismissal, and submitted that a contractual disciplinary procedure extended until the time when the appeal was satisfied. It must therefore follow a duty of confidentiality also extended and the Tribunal were incorrect in law when it concluded the duty of confidentiality ended on the claimant’s dismissal for gross misconduct when he was found to be in fundamental breach of the implied term of trust and confidence.

[51]In oral submission the claimant stated that the Tribunal should have asked itself what was in the minds of Elaine Bowker, Bill Harrop and Angela Cox, the appeal manager. It did, and made the findings set out in the promulgated Judgment.

[52]The Tribunal does not intend to repeat its judgment on this point set out in paragraphs 104, 105 and 106. In short, as a matter of law the claimant was in fundamental beach of contract, the breach was accepted by the respondent who found the claimant guilty of repudiatory conduct justifying summary dismissal. At no point did the Tribunal imply or say the respondent’s reputation trumped the claimant’s right to confidentiality, as now maintained by the claimant; such a matter was irrelevant to the Tribunal’s consideration. HR involvement

[53]The claimant criticises Kath Marshall for carrying out some preliminary fact finding to establish whether there was anything to investigate. The claimant has not shown that he was caused any detriment by Kath Marshall’s involvement. In the Tribunal’s experience it is not unusual for HR to be involved in preliminary investigation before the investigation process is under way, in order to establish whether an investigation should take place. Kath Marshall, who did not carry out the investigation, wrote to the claimant on 5 August 2015 inviting him to attend an investigation meeting with Damien Kilkenny concerning a “potentially serious issue…” It is not unusual for an experienced HR person to advise throughout the process, and it is not unusual for HR to start the process off. Damien Kilkenny was the investigating officer, not Kath Marshall as set out in the promulgated Judgment.

[54]The claimant argued the second breach of confidentiality “concretised” his unfair dismissal which would not be put right on appeal. The claimant, who was bringing a claim of automatic unfair dismissal only, was again revisiting issues explored in the liability hearing, following which the Tribunal reached the conclusion and facts set out in the promulgated Judgment, which it does not intend to revisit or repeat.

[55]In short, the claimant is attempting to re-argue his point that a conspiracy had taken place, and the Tribunal should have inferred from the respondent’s breaches of the contractual disciplinary policy, its statutory obligations, breaching the claimant’s Article 6 & 8 rights under the HRA, its knowledge of the law and access to legal advice, with higher managers “straying into areas of culpability,” and the Tribunal ignoring all of this evidence by finding in favour of the respondent. The claimant is seeking to use this reconsideration as a means to re-argue his case, bringing in new matters and rehearsing the evidence. It is in the interests of justice to both for this litigation to be final, and the claimant’s application for the Judgment to be revoked is unsuccessful and dismissed. The Tribunal confirms its judgment and reasons promulgated on 15 August 2017.

[56]At the end of this hearing it was brought to the Tribunal’s notice that the claimant, a home owner, has not disclosed information relating to equity in his house, ostensibly on the basis that it breaches the human rights of his wife, despite being so ordered by the Tribunal. At the costs hearing listed for 7 March 2018 the parties will be expected to deal with this and the effect it could have on the Tribunal’s decision if it were minded to award costs, how those costs could be assessed with justice to both parties in mind. The claimant was made aware by the respondent that it seeks to adduce evidence concerning the valuation of the house he owns, and he may wish to produce some evidence of this himself. For the avoidance of doubt, the Tribunal’s order that the claimant disclose what equity he has in the matrimonial home remains in force pending submissions.

[1]The claimant is ordered to pay to the claimant a contribution towards costs in the sum of £5,000. The claimant will pay to the respondent the sum of £5000.00.

[2]The claimant’s application for a costs order against the respondent had no merit and is dismissed.

[1]This is a costs hearing following promulgation of the Reserved Judgment and Reasons (“the promulgated judgment”) on 15 August 2017.

[2]The Tribunal heard oral evidence from the claimant and considered the documents produced by the parties, including the respondent’s application dated 19 October 2017 and supporting inter-parties correspondence, the claimant’s written resistance to the respondent’s application together with supporting documents including the claimant’s letters of 12 and 23 May 2016.

[3]The respondent, in a letter dated 19 October 2017, has made an application that the claimant is ordered to pay costs totalling £27,150 in respect of the liability hearing and £4,200 in respect of the reconsideration hearing, both excluding VAT. The claimant has taken an exception to this application, and has set out his response in a letter dated 5 November 2017. The Tribunal has taken into account all the documents produced by the parties.

[4]The grounds relied upon by the respondent are varied, and include:4.1 The claimant had acted vexatious or unreasonably in bringing the proceedings, and in the manner of conducting the litigation. It is maintained the claimant sought to harass the respondent by threatening legal action, and the Tribunal was referred to the relevant pages in the bundle that referred to threats to bring civil proceedings for negligence, defamation and other alleged breaches. In addition, the claimant raised serious and unsubstantiated serious allegations against Elaine Bowker, and a campaign was “pushed by the local UCU” that the claimant had knowledge of, which he could have influenced and stopped.

4.2 The claimant had acted unreasonably; there was a considerable amount of evidence given by the claimant not accepted by the Tribunal.

4.3 The claimant raised issues with no foundation and made the bundle of documents voluminous.

4.4 The claimant continually distorted the evidence given, including his summing up.

4.5 The claimant was dishonest with regards to the effective date of termination.

4.6 The claimant relied on legal arguments that had no merit or were irrelevant.

4.7 The respondent also seeks a cost order on the grounds that the claimant, who had access to legal advice from the outset through union solicitors Thompsons, would have been aware that his claims had no reasonable prospect of success.

[5]The claimant submitted that his case must have had merit because(a) the respondent did not seek to strike them out and

(b) the Tribunal on its own volition did to seek to strike his claims or require a deposit to be paid, at any stage of the process including preliminary hearings and case management. The claimant maintained judges at a preliminary hearings and the Tribunal on sift took the view his claims were meritorious and had a reasonable prospect of success, evidenced by the fact the claim was listed for a 10-day hearing and a 2-day reconsideration hearing.

[6]The Tribunal did not accept the claimant’s arguments. There was no judicial consideration of whether the claimant’s claims had a reasonable prospect of success and it cannot be inferred by the length of the listings that they were meritorious and had a reasonable prospect of success as submitted by the claimant. The length of the hearings reflects the amount of time it took for the parties to deal with issues, the claimant in particularly, as he forwards his case and arguments in great detail.

[7]The claimant submitted he had initiated a settlement proposal in April/May 2016 on the basis that each party walks away bearing their own costs. The claimant was represented by Thompsons, who came off record with the Tribunal on 30 March 2016 and by 12 May 2016 Thompsons did not represent the claimant in any capacity. In an email sent 4 May 2016 the claimant was given one of two options to chose from with regards to a proposed public statement; he chose neither. The respondent sought the agreement to a condition of a joint statement as a term of the settlement. Statement option number one was: “Gary Duke has withdrawn his employment tribunal claim against the College. The matter is now at an end.”

[8]The respondent clarified in the 9 May 2016 email “If this option 1 statement is the statement we go with then a term of settlement is that Gary is prevented from making any other statements in respect of his ET claim and from repeating the allegations made against the College. This would be a joint statement sent to all staff, UCU and/or added as a final statement to the change.org web page. Gary must notify his local UCU reps of the detail of this settlement and the obligation not to make further statements regarding this matter including on social media.”

[9]The claimant responded on 12 May 2016 as follows: I cannot agree…I have …come up with an alternative statement which…best sums up your client’s attitude…’Dr Duke has agreed to withdraw his proceedings against the College because of the College’s repeated intimidatory threats of costs against him and his family.’”

[10]The negotiations broke down, and the claimant was well aware he was at risk of costs thereon in. The fact the respondent failed to notify him of the amount of costs actually incurred as at the 12 May 2016 does not undermine the fact he was warned of costs. This cost application has therefore not taken the claimant by surprise, the claimant having initiated the settlement exchange on the basis that he would not have to pay the respondent’s costs. It is common knowledge negotiations during the litigation process may lead to COT3, confidentiality clauses and agreement reached between parties as to the minutia underlining the settlement. This is common occurrence in employment cases, and the claimant’s argument raised at this cost hearing that the options offered were against his right to freedom of speech under the Human Rights Act was unpersuasive.

[11]The claimant sought to persuade the Tribunal, despite not having made any previous formal application and put the respondent on notice of this application, to order costs against the respondent because of adjournments in the past and Mrs Skeaping’s email received this morning. The claimant also referred to the respondent’s failure to comply with case management orders late.

[12]The Tribunal struggled to see how this would affect the respondent’s claim for costs, and it was satisfied Mrs Skipping whose absence resulted from her undergoing tests for a lump in her breast, cannot be criticised in any way for not appearing today. She informed the Tribunal as soon as it was not possible, and gave it the opportunity to deal with the application based on written submissions. Mrs Skeaping’s non-appearance did not prejudice the claimant, in fact it advantaged him because Mrs Skeaping was unable to clarify the relevance of the EAT decision in Mr C Mardner v C Gardner, Mr W Ali, Ms M Press

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and nor did she produce evidence relating to the valuation of the matrimonial home. Instead, Mrs Skipping invited the Tribunal to proceed on the basis of her written representations and when the claimant was given the option of adjourning or proceedings with today’s hearing, his decision was to proceed.

[13]The claimant’s application for a costs order against the respondent had no merit and is dismissed. Law

[14]The relevant Employment Tribunal Regulation is 74-76. Rule 76(1)(a) provides that: “A Tribunal must consider whether to make a costs order against a party where he or she has acted unreasonably in the bringing or conducting of proceedings”. Rule 76 of the Tribunal Rules 2013 imposes a two stage exercise for a Tribunal in determining whether to award costs. First, the Tribunal must decide whether the paying party (and not the party who is seeking a costs order) has acted unreasonably, such that it has jurisdiction to make a costs order. If satisfied that there has been unreasonable conduct, the Tribunal is required to consider making a costs order and has discretion whether or not to do so. Fees for this purpose means fees, charges, disbursements or expenses incurred – rule 74(1) Tribunal Rules 2013. In Employment Tribunal proceedings costs do not ordinarily follow the event, unlike County Court and High Court actions.

[15]On behalf of the respondent the Tribunal was referred to the Eat judgment in Mr C Mardner v Mr C Gardner and Others

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. However its relevance was not explained and was not easily apparent to the claimant or Tribunal. The Tribunal however notes the relevant legal principles set out from paragraph 12 onwards, particularly the requirement for the Tribunal to address the question whether it is appropriate to exercise the discretion to award costs even if a claim is found to have misconceived or there is unreasonable conduct.

Conclusion

[16]With reference to the respondent’s ground 4.1 above, without further evidence of costs, the Tribunal is not satisfied the claimant’s behaviour was sufficiently unreasonable so as to attract a cost order for events that occurred prior to the ET1 being filed. There are no costs within the schedule before the Tribunal for this period, the first trenche of costs relate to reviewing the ET1 and its aftermath. The Tribunal is aware of the fact the respondent was legally represented throughout until March 2016, and received legal advice concerning the claimant’s during this time.

[17]The claimant made a valid point in oral submissions that the letter dated October 2016 from Robert Halfon MP to the chair of the respondent’s board following a ‘Further Education Stock Take Assessment’ should be taken into account. The Tribunal reviewed the letter again as requested. In the letter reference was made to “financial mismanagement” and incurring lawyer’s fees to challenge the process. The Tribunal in its promulgated judgment at paragraph 32 found the specific allegations raised against Elaine Bowker had no foundation, and the claimant’s explanation now to the effect that Elaine Bowker was in her capacity as principal of the respondent liable because the “buck stops with her” has little merit. The nature of the claimant’s cross-examination at the liability hearing was a personal criticism of Elaine Bowker i.e. she personally mismanaging funds intentionally, and the Tribunal accepts submissions made on behalf of the respondent that the claimant raised serious and unsubstantiated serious allegations against Elaine Bowker. It is notable time was spent on these allegations at the liability hearing, given the claimant’s case that a conspiracy had taken place by Elaine Bowker and other senior members of the management team against him. The claimant’s actions in this regard were unreasonable.

[18]Turning to the claimant’s influence of the Campaign pushed by the local UCU an alleged on behalf of the respondent, the Tribunal found it was very difficult to disentangle the claimant’s involvement with that of other people in the UCU. Whatever the claimant’s role, he cannot be accountable for the actions of others. It is not just and equitable to order costs on this basis, almost as a punishment for the claimant being part of this Campaign, especially bearing in mind union detriment is a serous issue going to the heart of union activities and industrial relations. The respondent acknowledged it was a fundamental protection for union members, and this must by definition, extend to the local UCU campaign whatever the claimant’s influence on it.

[19]With reference to ground 4.2 above, the Tribunal was of the view evidence needed to be given and tested in relation to the alleged union detriment (and not the Salford dismissal where it was self-evident the claimant was less than truthful) at a liability hearing before a full panel, and it was only after all the evidence had been heard and tested was the Tribunal in a position to reach the conclusions it did.

[20]With reference to ground 4.3 and 4.6 above, the Tribunal repeats it observation given in relation to ground 4.2 above. It was of the view that it would be difficult to separate out documents such as Face Book incident and Lex 57 given the claimant was arguing union victimisation over a long period of time, alleging other union officials had been previously dismissed. This evidence needed to be tested in order that a conclusion could be arrived at. The Face Book incident and Lex 57 were not irrelevant; the Tribunal was required to consider the evidence before it to ascertain whether a conspiracy had taken place, as alleged by the claimant, which culminated in his “partial suspension” for which there was no procedure. The Tribunal took into account the explanations given on behalf of the respondent, which it found were untainted by any union detriment motivation.

[21]The Tribunal found it was the case the claimant raised issues with no foundation and made the bundle of documents voluminous. The claimant was a litigant in person as from 30 March 2016, Thompsons having come off the record as acting on his behalf, and some leeway needs to be given. Not a great dealt of time was spent on the cases cited by the claimant that had no relevance, although a considerable amount of time was spent hearing and dealing with the claimant’s unmeritorious legal arguments on the Salford contract which the Tribunal has dealt with below.

[22]With reference to 4.4 above the Tribunal agreed with this observation; the claimant distorted evidence given by the respondent’s witnesses on crossexamination, and on occasions, the Tribunal’s findings with the result that unnecessary time was spent clarifying the evidence, as opposed to the slant given by the claimant. The Tribunal dealt with this in its promulgated judgments. A case in point was the Preliminary Hearing strike out application, the claimant alleging without any evidence whatsoever, Carol Cody was being intimidated into not giving evidence at his trial. When the Tribunal investigated this and explored the issue with Carol Cody, it was clearly not the case she was being intimidated and she was in a position to give evidence. Carol Cody’s objection was that she wanted to be paid for the entire time she was present at the Tribunal, whether or not she was giving evidence. Paragraph 18 of the promulgated judgment relates, and the Tribunal accepts the respondent’s argument that the claimant’s strike out application was frivolous and vexatious. The strike out application, on the face of it, was a serious allegation of witness intimidation, which was in reality was an issue about Carol Cody’s pay.

[23]With reference to 4.5 above the Tribunal refers to its promulgated judgment, which the claimant appears to “misunderstand” despite the reconsideration judgment. The claimant yet again, denies he was dishonest maintaining as his appeal had accepted by the EAT suggesting the points of law have merit and were meritorious. In its promulgated judgment at paragraph 34 the Tribunal found the claimant would not have been under any illusion about the date and reasons for the termination of his contract by Salford University, and he would have known beyond doubt that his employment had not been brought to an end as a result of the expiry of a fixed term contract. He continued with his less than truthful account of the Salford University dismissal throughout the disciplinary process instigated by the respondent, who was entitled to find he had fundamentally breached his contract of employment entitling it to summarily dismiss.

[24]It follows that the claimant’s application for unfair dismissal, given the information before the respondent at the time, had no prospect of success. There was no evidence whatsoever of a connection between the claimants’s trade union activities and his dismissal. Any reasonable employee objectively considering the information before them would have appreciated he/she was facing serious gross misconduct allegations and the resulting dismissal was causally linked to their own misconduct. In accordance with Rule 76(1)(a) the claimant had acted unreasonably in the bringing or conducting of the unfair dismissal claim such that the Tribunal has jurisdiction to make a costs order. Having satisfied itself that there has been unreasonable conduct, the Tribunal is required to consider making a costs order and has discretion whether or not to do so, taking into account the claimant’s means which it has done below.

[25]Finally, with reference to 4.7 above, the claimant submitted that the legal advice he received advice was privileged, and the respondent would not have known whether he had been informed his claims had little or no reasonable prospect of success. On behalf of the respondent it was submitted that in a case of union detriment the union “would have thrown its support and funds behind taking action…they would not cease to act ordinarily in a case which they considered to have reasonable prospects of success”. This is a matter of opinion, and whilst the argument may have a ring of truth to it, one cannot be certain the claimant was advised of the weaknesses in his case; accordingly the Tribunal has not taken this into account.

[26]The Tribunal took into account the claimant’s unreasonable rejection of the respondent’s condition for accepting his offer to bring the litigation to an end on a no cost basis, the claimant’s response on 12 May 2016 referring to the respondent’s “repeated intimidatory threats of costs against him and his family” being inflammatory within the litigation. The claimant was under no misapprehension as early as April 2016 that costs were going to be an issue, and yet he proceeded with the litigation despite making the first move to settle on the basis of the cost risk.

[27]The Tribunal is aware that it is “rare” for costs orders to be appropriate in Employment Tribunal proceedings; they do not follow the event as in the ordinary course of litigation. The claimant had two causes of action, the automatic unfair dismissal and trade union detriment which he argued overlapped in that his dismissal was causally linked to trade union detriment. The Tribunal took the view that the claimant’s unreasonable conduct lay with him bringing the claim of automatic unfair dismissal, which had no prospect of ever succeeding for the reasons already given. In short, the automatic unfair dismissal complaint was one which had been conducted unreasonably, was misconceived and it resulted in the hearing taking longer than it should have had the claims been limited to union detriment. Having regard to the nature, gravity and effect of the unreasonable conduct as identified by the Tribunal, factors relevant to the exercise of the discretion, and bearing in mind the claimant had also behaved unreasonably in the manner set out above, it is just and equitable to make a cost award taking into account the claimant’s means.

[28]The Tribunal considered the claimant’s statement of means dated 16 November 2017 confirmed to be true under oath. An amendment has been made in respect of the claimant’s income as his fixed term contract expired 22 December 2017; the claimant has since qualified as a teacher and attracts a higher rate of pay. However, he has found it difficult to obtain permanent employment, and works on an agency basis. The agency contract comes to end Friday this week for which he received net £533.09 per week. The claimant was unable to say when he would be next employed. The claimant has savings of approximately £2000 and whilst the Tribunal has not seen any evidence of the equity in the matrimonial home, the outstanding mortgage is £49,500 approximately and thus there is bound to be some equity in the house.

[29]The Tribunal accepted the claimant’s evidence given under oath as credible, and having considered his statement of means, it concluded the claimant had worked under a temporary contract that was terminated on 22 December 2012. Since then, he qualified as a teacher and has been providing cover at Manchester College which finishes Friday. As a result of being dismissed the claimant will find it difficult to obtain permanent employment, and will be relying on agency/cover work for the foreseeable future where he will earn approximately £900 per week gross. Much will depend on whether work through the agency is available.

[30]It is more likely than not the claimant will not have any income for a few weeks at least, and his wife’s salary will meet the household expenditure including the monthly mortgage payment of £481.75 on a mortgage of £49,592.00. The Tribunal has considered the Nationwide statements showing the mortgage payments. It is likely the household will not cover the total monthly outgoings of approximately £2160.59 (including the mortgage) if the claimant is not working. He has saved £2000 for this eventuality, and the Tribunal took the view the existence of savings merited a costs order, taking into account the likelihood that the claimant will obtain some form of employment, given his qualification as a teacher. The claimant lives at 51 Peel Street, Eccles, and the Tribunal took the view there was sufficient equity to cover any costs order.

[31]Employment Tribunals are a cost free jurisdiction, however, the wording of the statute is clear, and it took the view the claimant acted unreasonably in the knowledge that he had been dismissed for gross misconduct The claim for unfair dismissal was totally without merit, and taking into account the claimant’s means it is just and equitable for the Tribunal to use its discretion in favour of the respondent, who has incurred substantial costs in defending a meritless claim. This had an effect of increasing the respondent’s costs by a broad brush figure of £5,000 given the complexity of the union detriment complaint. In assessing this figure the Tribunal considered respondent’s costs schedule and the amounts set out therein.

[32]It cannot be said the claimant had acted unreasonably in the bringing or conducting of proceedings in relation to the union detriment complaint, which was clearly in issue and required the Tribunal to consider a complex factual matrix and a number of documents. A considerable proportion of the time and expense was uncured by the respondent defending this complaint. Without a detailed schedule of costs the Tribunal is unable to allocate what costs were incurred in defending the automatic unfair dismissal complaint and those incurred in defending the union detriment claim. It is in accordance with the overriding objective to take a broad brush to the costs, as opposed to a more scientific approach, the Tribunal concluding it was just and equitable to award the respondent a contribution towards its costs in the sum of £5,000. This is an amount the claimant can clearly afford taking his means into account. For the avoidance of doubt the Tribunal has also taken into account the whole picture of what happened in this case, and the fact that a costs award against a party is not a punishment.

[33]In exercising its discretion in favour of the respondent the Tribunal took into account that from May 2016 the claimant was a litigant in person and justice requires that Tribunals do not apply professional standards to lay people, like the claimant, who has some experience in the Employment Tribunal but lacked the objectivity and knowledge of law and practice expected of a professional legal adviser. The respondent has met the threshold tests for an order having regard to all the circumstances, including the fact the claimant was legally represented when he first brought the proceedings for automatic unfair dismissal, and the fact that he has behaved unreasonably, even making an allowance for inexperience and lack of objectivity.

[34]In conclusion, the claimant is ordered to pay a contribution towards the respondent’s costs in the sum of £5,000 and he will pay to the respondent £5000.00. Employment Judge Shotter 16 March 2018