Employment Judge HoeyRepresenting himself for claimantMr Braier (instructed by counsel) for respondentDate 4 February 2020
JUDGMENT
[1]The claimant was not unfairly dismissed and his claim is not well founded. JUDGMENT[2]The claimant’s application dated 5 and 18 February 2020 for reconsideration of the judgment sent to the parties on 1 July 2020 is refused.
REASONS
[1]I have undertaken a preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claim.[2]At a hearing lasting 2 days, on 3 and 4 February 2020, the claimant’s claim of unfair dismissal was heard. Previous case management had resulted in the parties working together to agree a bundle for the hearing.[3]The hearing lasted both days and following an adjournment to consider the evidence and the parties’ submissions, an oral judgment was issued.[4]The claim was dismissed, oral judgment having been given on 4 February 2020. 5 February 2020 email from claimant[5]On 5 February 2020 the claimant sent an email to the Tribunal asking for an appeal (or reconsideration). The claimant alleged that the respondent had withheld a letter dated 5 September 2018 from him (at the time) and he said that if that letter had been disclosed to him, he would have been able to show that his most senior manager, Mr Dixson, had lied throughout the disciplinary process that led to his receiving a final written warning. He said that he had not appealed against the decision Mr Driscoll made on 20 September 2018 but would have done had he been in possession of that communication which he only received on 31 January 2020.[6]The claimant stated in his email that at the start of his case he was told that he could only rely on matters that related to his dismissal from the respondent, rather than the background matters behind the final written warning he had been given some time earlier. The claimant indicated that such matters were only one quarter of his case, the remainder being in relation to past events.[7]He argued that had he seen the letter at the time, there could have been a different outcome, accepting that he cannot say for certain that the outcome would have been different. He stressed that if he had seen the letter at the time of his grievance in 2018, he would have appealed against the grievance outcome. 11 February 2020 email from claimant[8]On 11 February 2020 the claimant sent a further email to the Tribunal stating that the respondent had withheld other important documents from him. This time he referred to a document from 4 June 2019, which the claimant said he had asked for at the time. He said that this had only been disclosed to him on 31 January 2020 with the September 2018 letter. He repeated his comments from his earlier email stating that if he had seen the September 2018 letter at the time the case “could have gone a different way”. He said he would never have accepted the final written warning and would have appealed and he may not have been dismissed. He asked for a rehearing because of the respondent withholding evidence. 18 February 2020 email from claimant[9]On 18 February 2020 the claimant sent a further email to the Tribunal, copied to the respondent. He asked for a rehearing because the respondent withheld 2 documents from him, dated 5 September 2018 and 4 June 2019. He said that had he known this at the time he would have appealed against the decision he said led to his final written warning (although it was in fact an earlier grievance outcome, which was separate from the disciplinary process, in respect of which the claimant did appeal).[10]On 19 March 2020 the claimant asked for written reasons.[11]Having received the earlier emails from the claimant in March 2020, the claimant was told that his email of 18 February 2020 was being treated as an application for reconsideration of the judgment and the respondent was asked for comments on the above communications, particularly with regard to the allegation that the respondent withheld documents and the outcome would have been different. 20 March 2020 – the respondent’s response[12]On 20 March 2020 the respondent replied. This had been sent to the claimant too and stated that the claimant had not set out why reconsideration of the original judgment was necessary since the complaints were about timing of disclosure and content of the bundle which the respondent said ought to have been raised at the start of the Hearing. The claimant had not asked for further time to prepare his case and the Hearing proceeded.[13]The respondent stated that the email of 5 September 2018 was an email with attached note of an interview Mr Dixson had with Mr Driscoll in connection with the claimant’s grievance. The respondent noted that the claimant said if he had seen this at the time he would have appealed the outcome of his grievance. The respondent submitted that the claimant is suggesting the outcome of the grievance was connected to the claimant receiving a final written warning. The respondent said these were 2 separate processes and it did not follow that if the claimant had appealed against the outcome of his grievance, a final written warning would not have been issued. The processes were separate. The respondent also noted that this point was not put to Mr Driscoll at the Hearing.[14]The respondent also noted that the handwritten investigation notes were of a meeting with the claimant that took place on 4 June 2019. This was a handwritten note that had been typed up with the typed document already featuring in the bundle. Reference had been made in the original bundle to the handwritten document. The claimant had not asked for that document during the disclosure process despite now claiming that it is important and despite the document being consistent with the typed document. Further the respondent noted there was no explanation as to what the alleged disadvantage to the claimant was.[15]The respondent stated no documents were “withheld” from the claimant.[16]The respondent also noted that the claimant said he was “only allowed” to run one quarter of his case because he had not appealed the grievance outcome which he says he would have done had he seen the document of 5 September 2018. The respondent said that it is not correct to say the claimant was “not allowed” to do so, since at the start of the Hearing the claimant accepted that a final writing warning existed and that he could not make any challenge to it within the limits permitted by law and as such the Hearing focussed on the fairness of the dismissal.[17]The respondent noted the claimant did not assert that he would have raised any appeal against the decision at the time in the way that is now contended.[18]The respondent concluded by stating that this is not a case where new evidence has appeared. All the evidence was previously available. The claimant could have raised issues about timing of disclosure at the Hearing but did not. He also could have made the assertion about appealing the grievance outcome and thereby challenging the final written warning but he did not. Instead it was confirmed at the Hearing that the final written warning was not being challenged. It was not therefore in the interests of justice to reconsider the judgment. 10 June 2020 email from claimant[19]On 10 June 2020 the claimant sent a further email to the Tribunal. He said that there was “a dialogue” between the respondent’s representative and the Employment Judge at the start of the case which he said he did not understand which led to him being unable to refer to anything other than the events that led to his dismissal. He said that this was because he had not appealed against the final written warning. The claimant did appeal against the final written warning that was issued; he did not appeal against an earlier grievance outcome.[20]The claimant said that he had always maintained the whole disciplinary process was unfair and biased and that he had been found guilty of bullying behaviour without being able to defend himself. He said that Mr Driscoll found him guilty before seeing the colleague statements and that the email of 5 September 2018 shows untruths when Mr Dixson was asked questions by Mr Driscoll. The claimant said he only got the email on 31 January 2020 and that Mr Dixson “required to explain his lies”.[21]The claimant repeated that he was unable to bring up matters that related to issues other than his dismissal.[22]On 11 June 2020 the claimant’s comments were sought in relation to the respondent’s email and the respondent’s comments were sought in relation to the claimant’s email.[23]On 22 June 2020 written reasons were issued to the parties and the claimant was asked to confirm whether he still maintained his request for reconsideration.[24]On 10 August 2020 the Employment Judge was provided with a number of emails as follows. 1 July 2020[25]On 1 July 2020 the claimant emailed the Tribunal asking for a complete rehearing which should proceed on the assumption that in all probability he would have appeared such that he could refer to matters arising before the issues that led to his dismissal. He asserted that his dismissal was “in the making since 2017”.[26]On 17 and 28 July 2020 the claimant sent 2 lengthy emails setting out his comments in relation to each paragraph of the written reasons. These are dealt with further below. He concluded by asking for a complete rehearing which was to proceed on the assumption that he would have appealed. He concluded that “I am the victim of lies and collusion because I decided to stand up for myself”.[27]On 10 August 2020 the respondent was asked for its comments in relation to the claimant’s detailed emails.[28]Unfortunately, due to pressure of business and the workload of the administrative team, the Employment Judge was not advised as to the position in relation to any response to the foregoing requests.[29]Within the last month or so, the parties were advised that the Employment Judge was seeking time to consider the reconsideration request and that a written outcome would be provided. An apology was issued for the delay.
The law
[30]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[31]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[32]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board 1975 ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials 1994 ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[33]Similarly, in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the Employment Appeal Tribunal chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[34]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. It is also important to recognise that fairness and justice applies to both parties – the claimant and the respondent. The application[35]In the claimant’s emails of 17 and 28 July 2020 the claimant raises a number of points in connection with the written reasons that were issued following the oral judgment (“the reasons”). It is appropriate that I consider these points and then consider the claimant’s application generally. It is important I ensure any errors in the judgment (as identified by the claimant and me) are fully considered which would then allow me to consider his application fairly to consider whether it is in the interests of justice to reconsider the decision.[36]I have gone through the detailed points made by the claimant and I raise the points below that are material or could have a bearing on the application. This is because the claimant has provided his comment in relation to many of the findings and conclusions set out in the reasons. These were matters there were considered at the time. The issues the claimant raises in his communications with the Tribunal largely comprise his arguments that were raised at the Hearing (which were points made by the claimant during the disciplinary process) and duly considered. The material issues arising are set out below. Comments in relation to the reasons[37]In relation to paragraph 9 of the reasons I stated that the claimant noted in his appeal against his final written warning that he felt it was “a bit extreme” and that in his view a verbal or written warning would have been “fairish” and sufficient. In his emails he says that if he had seen the “withheld” email of 5 September 2018 the “lies” from Mr Dixson would have led to him appealing (against the grievance outcome).[38]This is a key part of the claimant’s reconsideration request, namely the fact that he was unable to challenge the final written warning at the Hearing which focused on the fairness of the claimant’s dismissal. This was a matter that was dealt with at the start of the Hearing in some detail when a discussion took place with the claimant and the respondent’s barrister as to what the claims were and the legal issues that required to be determined. Contrary to the claimant’s suggestion that there was a “discussion” between the respondent’s barrister and the Employment Judge, the discussion around this issue involved both the respondent’s barrister and the claimant. It was part of the preliminary issues that was being discussed with both parties. It was a detailed discussion.[39]The respondent’s barrister raised the issue as a preliminary point arguing that this did not appear to be a case which was covered by the authorities with regard to reopening the final written warning.[40]I explained the position as set out in the authorities to the claimant and took care to ensure he understood the position. The claimant is an articulate and intelligent person who engaged in the discussion and understood the position. The guidance given by Langstaff, then President in Wincanton v Stone 2013 IRLR 178 was discussed and examined (as set out at paragraph 69 of the reasons).[41]As set out at paragraphs 8 to 13 of the reasons, the claimant accepted that the issuing of the final written warning was not alleged by him to manifestly inappropriate, nor was he suggesting it was issued in bad faith nor was he arguing that there were no grounds to raise it. His position was that the final written warning was “a bit extreme”. He denied that he had been a bully but conceded that there was conduct justifying the application of a disciplinary sanction, perhaps a warning (in his view).[42]On that basis, the claimant agreed that the Hearing would proceed on the basis of his challenge to the dismissal, given the extant final written warning. He was arguing that there was no basis for the misconduct for which he had been dismissed and he was content to argue that (with the final written warning as background). That was a position the claimant had arrived at having considered his case and all the issues arising. He had understood the legal position and agreed upon what the legal issues were that required to be determined. In his view the final written warning was essentially irrelevant since he had done nothing wrong and so his dismissal was unfair.[43]It was his position that as he was not guilty of any misconduct, and so the dismissal was unfair. The final written warning to which he was subject was not an issue and was not being revisited and therefore no evidence would be led in relation to it as it was not argued to fall within the exceptions permitted by law that would allow it to be reopened. The claimant was comfortable with this position and confident that matters could proceed. He had clearly understood the position and was clear in this approach.[44]Given the claimant’s acceptance of the position, following consideration of other preliminary matters, the Hearing was adjourned to allow reading of the witness statements with evidence being heard a few hours later.[45]At the Hearing the claimant had understood the authorities in relation to when a final written warning could be “reopened” and he had fairly and candidly accepted the position. He did not raise the matter further when the evidence was heard nor suggest that he did not understand the position. There was no further suggestion from the claimant, upon his reflection, that he had made an error in conceding that issue, including during the course of the second day nor during his submissions. I was satisfied the claimant had properly understood the position and had made a fair and reasonable concession given what he said.[46]While there were a few occasions where the claimant had asked questions about matters unconnected to issues to be determined, he understood why those questions were not relevant and focused on the issues in dispute. It was important that the evidence focused on the issues the parties had agreed required to be determined such that a fair hearing could take place.[47]The claimant argued in his application that the final written warning should never have been issued. He says that if he had seen the “withheld” document of 5 September 2018, which he says contain lies from Mr Dixson he would have appealed against the warning. He argues that “suddenly” he is alleged to have become a bully.[48]The document of 5 September 2018 was not, however, withheld from the claimant. It was provided to the claimant prior to the Hearing, albeit a few days before its commencement. It also relates to the claimant’s grievance rather than the disciplinary process that led to the final written warning. It is not certain that either the claimant would have appealed against the grievance outcome if he had that document. He chose not to appeal at the time from the information he had and in his appeal email of 4 October 2018 the claimant stated: “Although I have MANY reasons to appeal the bullying decision, to be blunt, I can’t be bothered to. This is because, despite my immediate work colleagues, I actually enjoy my job and I KNOW I am not a bully. I feel a verbal, maybe written warning would be sufficient and dare I say it, fair’ish.”[49]Even if the claimant would have appealed against the grievance outcome there is no evidence to suggest the outcome would have been different given how his conduct was viewed at the time (and taking account of the claimant’s own admission as to its seriousness).[50]The claimant had been provided with this document prior to the commencement of the Hearing and had time to consider it. He did not argue this was an issue nor did he seek more time to consider matters.[51]From the information before the Tribunal, the final written warning had been issued (as set out at paragraph 9 of the reasons) and, as accepted by the claimant at the Hearing, the circumstances set out in law that allow the final written warning to be reopened were not present in this case. As a matter of fact he did appeal against the final written warning which considered his arguments fully.[52]In relation to paragraph 10 of the reasons, the claimant says that he was given the final written warning because he was told it was the severest sanction that could have been given to him and that dismissal could not have been effected because he did not do anything wrong, other than stand up for himself. The reasons noted (at paragraph 10) that the outcome of the disciplinary hearing had been lessened from dismissal due to the nature of the conduct in question. Mr Williams in his witness statement had stated in dealing with the appeal against the final written warning, the claimant had believed the sanction (the final written warning) to have been harsh but that it would (in the claimant’s view) have been “fair-ish” to have been issued with a written or verbal warning. Mr Williams’s evidence was that the offence was potentially gross misconduct and the sanction had been reduced because he wished to improve standards in the branch.[53]In the appeal outcome letter following the claimant’s appeal against the final written warning, the appeal officer, Mr Williams, stated that it had been alleged by the claimant that his responses had been dismissed during the disciplinary hearing. Mr Williams checked the position and did not agree with the claimant. He stated that: “The disciplining officer took into account that you intended your behaviour to be banter and that you intended the outcome of this banter to be better standards within the branch. He therefore lowered the sanction to a final written warning. I found no evidence your comments were dismissed and I consider that they were very much taken into account when reaching the disciplinary decision.” It was not correct therefore to assert (as the claimant does) that he was given the most severe sanction following that disciplinary process. It was possible that dismissal could have ensued, but the disciplining (and appeal) officer took account of the claimant’s position and issued him with a final written warning.[54]At paragraphs 11 to 13 of the reasons I summarised the discussion that took place with regard to the law in this area. The claimant states in his application that “what the judge said on the day was in no way clear”. I explained the position carefully to the claimant and gave the respondent’s agent the chance to make any comment. The claimant understood the legal position and accepted that the warning had been issued and that while he considered it harsh, he did not consider it manifestly inappropriate or fall within any of the other grounds allowing it to be reopened. The claimant was articulate and intelligent and in no sense gave the impression (or said) that he did not understand what was being discussed. He contributed to the discussion and having considered matters confirmed his position.[55]The claimant stated that he referred to documents which he had received which he stated would have resulted in an appeal against the final written warning. He did appeal against the final written warning and that was taken into account. I checked with the claimant that he understood the circumstances when a final written warning could be reopened, and he confirmed that the facts of this case did not fall within those parameters. From the information presented to the Tribunal by the claimant, that was a reasonable position to adopt.[56]There was no suggestion from the claimant before the Tribunal that he considered the final written warning to be manifestly inappropriate, issued in bad faith or without there being a basis for the warning to be issued. His criticism was that the warning was “harsh” when set against his admitted conduct. He accepted he had done wrong but argued the outcome was harsh. The matter had, however, been considered both at an original hearing and an appeal hearing. He accepted, having considered matters, that the matter could not be reopened given the authorities, with particular reference to President Langstaff’s guidance in Wincanton v Stone 2013 IRLR 178, as set out in full at paragraph 69 of the reasons. In light of that concession the Hearing proceeded on that basis.[57]It was important that I took account of the overriding objective and was fair to both the claimant and the respondent. Given the admitted position of the claimant in relation to the warning and his concession, which was reasonable in the circumstances, it was fair and just to focus on what the claimant considered the main aspect of his case, that he had done nothing wrong such that his dismissal was unfair (irrespective of any warning).[58]Throughout the claimant’s application he reiterated his position, which is that the events that led to his dismissal were “minor” and “exaggerated” and “blown out of all proportion”. That was his position before the dismissing officer and the appeals officer (and the Tribunal). His position in relation to the incident in question was taken into account by both the disciplining and appeal officers and fully considered. The claimant believes that his colleagues saw this as an opportunity to “stitch him up”. His correspondence during the process was very clear that this was his view and this was something that the disciplining and appeals officer considered carefully.[59]The claimant pointed out that at paragraph 30 of the reasons I stated that the claimant had barred a member of staff with Asperger’s syndrome from leaving the room which caused anxiety. The claimant correctly points out that this individual was outside the room at the time. That was my mistake in writing the reasons. The statement that had been obtained from this individual had referred to an earlier confrontation involving the claimant and the statement obtained from him during the disciplinary process had stated: “As I suffer from Asperger’s syndrome this sort of confrontation creates anxiety and I get confused which leads to getting upset”. He referred to being upset as a result of that incident and of the need to get fresh air. My error did not affect the issues in this case. That employee had been outside the room during the incident in question, which was a point the claimant had made during the disciplinary process and Hearing, which was taken into account.[60]The purpose of the unfair dismissal claim is not to rehear the evidence and decide what outcome the Tribunal would impose but rather consider the information before the respondent at the time and assess the actions and response. I took into account what information the respondent had obtained via the investigation process, which included the claimant’s position (which was very clearly presented and at great length during the process) together with the other witness evidence. I assessed the position as against that information.[61]The claimant repeated his position in relation to this, when he commented about the facts found at paragraphs 31 to 36. The claimant argued that he “disputes they were facts” but ultimately the respondent reached a decision based on the information before it. While he disputed the facts, I decided that the conclusion the respondent reached with regard to the facts before them was a conclusion that a reasonable employer could reach in the circumstances, taking full account of each of the claimant’s criticisms of the facts and given his very clear rebuttal. That included the points the claimant had made in his letter of 7 June 2019. It is not accurate to say that the claimant was not allowed to refer to any of its content while the respondent was. I sought to help the claimant focus on the issues relevant to determination as to the issues before the Tribunal in light of the time allocated for the Hearing and the issues in dispute applying the overriding objective.[62]The claimant was able to challenge the witnesses as to the matters that led to his dismissal, and he did so thoughtfully and fully. The letter the claimant had sent set out (amongst other things) the claimant’s response to the allegation in question, which was a matter that the claimant fully put to each of the witnesses. The background information with regard to the circumstances leading to the final written warning was background and not relevant with regard to the issues to be determined by the Tribunal. Both parties were able to focus on the facts that led to the dismissal.[63]At paragraphs 46 and 47 I noted the claimant’s position which was that he believed there was a concerted attempt to stitch him up. I noted that the claimant had not presented any specific evidence to substantiate the suggestion (and it was essentially the claimant’s word as against his colleagues’ words). In his application he states that his written statement and the documents he provided did provide “proof” but his statement provided the background material, all of which was before the respondent. The respondent did consider each of the points the claimant made, which included the reasons why the claimant believed his colleagues were seeking to “stitch him up” and have him dismissed. These were all considered and the respondent decided, on balance, to reject that evidence and prefer the evidence presented by the claimant’s colleagues. The claimant is and was not happy with that decision but the decision was a reasonable one on the facts.[64]The claimant has also asked why he was not required to read out his witness statement. As agreed at the commencement of the Hearing, following the preliminary matters having been dealt with, it was agreed that I would read each of the written witness statements and evidence would then be heard. That was what happened. There was no reason to read it aloud (which was not something the claimant expressly sought). The claimant’s witness statement was read prior to evidence being heard orally and he had the opportunity to provide any supplementary evidence on his own behalf. He was then cross examined and answered fully.[65]The respondent took into account the information the claimant had presented at each stage of the disciplinary process. There was no concrete “proof” as such of the claimant’s position as it was his belief that he had been “stitched up”. Each of the claimant’s communications was taken into account by the respondent’s witnesses but they chose to accept the other individuals’ accounts, which was an option I considered open to them and one which fell within the range of responses open to a reasonable employer (see paragraph 143 of the reasons).[66]The claimant also stated in his comments in relation to paragraph 49 (which deals with the outcome of the appeal) that he did give reasons to contradict the reason for his dismissal in his appeal letter. The claimant was not asked about that matter since it was a matter that the respondent considered in reaching its decision. The respondent did put its case to the claimant who was given the chance to present his response. The respondent considered each of the points the claimant raised in reaching its decision but that did not alter their decision. The claimant’s arguments that he was “stitched up” were considered by the respondent. The respondent chose not to prefer the claimant’s position.[67]The claimant referred to my quoting his witness statement at paragraph 51 where he accepted the allegations could warrant dismissal. His admission shows the seriousness of the allegations. While he disputes that he was guilty of the conduct in question, his position was taken into account by the respondent but rejected. The respondent chose to prefer the evidence of the claimant’s colleagues. Looking at matters objectively, if it was fair for the respondent to accept that evidence (and I consider that it was), it was relevant to note that the claimant accepted that such conduct could justify dismissal. The statement was not “used against” the claimant but was quoted to show that the claimant accepted how serious the conduct was. He was right to concede that since the conduct was of a nature to (potentially) justify dismissal.[68]With regard to paragraph 52 of the reasons I stated that the claimant asked that his appeal be heard by the manager who had conducted the investigation. Given that individual had been involved in the disciplinary process, it was not appropriate he deal with matters. (The inappropriateness arises obviously from having investigated matters rather than having upheld the final written warning, which was not something he had done, which was stated by me in error and did not affect my decision).[69]With regard to who was to hear the claimant’s appeal, he argued in relation to paragraph 53 that his comments that the CEO hear his appeal were “tongue in cheek” but that was not something about which the respondent could have been aware at the time. The claimant was in communication with HR around his appeal and Mr Driscoll had been appointed as the appeal manager. The claimant had been asked whom he would be comfortable hearing his appeal if Mr Driscoll was unavailable. The claimant replied stating: “That is a shame. Unless Mark Kelly [CEO] was able to take the meeting I’m afraid I wouldn’t be comfortable with anyone else.” That showed that the claimant was comfortable with Mr Driscoll conducting the appeal hearing. The claimant did not raise any concern during the appeal hearing with Mr Driscoll dealing with it.[70]The claimant had stated by email that he would have expected the appeal to be heard by his 2 main regional managers. While the precise correspondence raising this issue could not be located by the claimant during cross examination, the point was taken into account by me in assessing the fairness of the dismissal. He had pointed out to the respondent (in email correspondence), after his dismissal but before his appeal (on 28 June 2019), that if he had known he could have objected, he would have objected to Mr Williams dealing with his disciplinary hearing, since he had rejected the appeal against the final written warning.[71]However, the claimant had not raised any issue with Mr Williams hearing the matter at the time of the disciplinary hearing and the respondent had (reasonably) understood that the claimant wished Mr Driscoll to hear his appeal. He did not raise any objection or suggest Mr Driscoll was not an appropriate person to hear his appeal. Mr Driscoll considered the matter fully upon appeal and did not uphold the appeal.[72]The claimant alleged in his correspondence that he was not “allowed to bring in new evidence” at the submissions stage. That was correct since the claimant had concluded his case and had not specifically put the relevant document to the respondent’s witnesses (and no application had been made to do so) but the claimant’s decision to challenge the individuals had been noted and taken into account. Ultimately the respondent had been able to make arrangements to ensure the person the claimant asked hear his appeal (Mr Driscoll) did hear his appeal. Mr Driscoll had heard his appeal and had done so fairly and reasonably.[73]In relation to paragraph 54 of the reasons, the claimant stated that he did raise an issue with Mr Driscoll hearing his appeal. He refers to 2 pages in the bundle. These are the emails to which I refer above. The claimant raised an issue with an HR after he had been dismissed saying that he would have objected to Mr Williams dealing with his disciplinary hearing if he had known he could object. He did not object at the time of the hearing with Mr Williams (having experience of dealing with disciplinary matters) and the hearing proceeded. In relation to the appeal hearing the claimant did wish Mr Driscoll to deal with matters. He did so and the claimant did not challenge this. In this regard the respondent acted fairly and reasonably. This was dealt with at paragraph 129 of the reasons. Both the disciplinary and appeals officers considered the evidence before them and reached a decision that fell within the range of options open to a reasonable employer in the circumstances facing the respondent. The investigation was reasonable in the circumstances.[74]In relation to paragraph 56 the claimant argued that he could have explained why one of the statements that had been produced at the investigation stage could have been “dismissed”. The claimant argued that the events from the day were greatly exaggerated. The purpose of the unfair dismissal hearing was to assess what the respondent did in relation to the information before it. The claimant stated that he was prevented from proceeding to show that statements should have been dismissed. That is not accurate. I explained to the claimant that the focus of his questions were around the information available and whether they acted fairly and reasonably from the information before them, rather than reenacting the events before the Tribunal. The respondent took account of the information before it, including the claimant’s very clear account and challenges to the evidence that had been obtained. While the approach was not perfect, it was reasonable. The Tribunal must not substitute its view for the employer but instead must consider the information before the respondent and assess the steps taken on that basis.[75]The claimant also noted that the reasons state that the claimant did not provide any evidence and he refers to his appeal letter. His appeal letter was taken into account by the respondent. Ultimately there is no direct evidence supporting the claimant’s contention as to exactly what happened on the day in question and it was his word against those who were also present (whose position different from his but were broadly consistent).[76]The background information the claimant presented was taken into account and it is not correct to state, as the claimant contends in relation to paragraph 57, that the evidence was always available and no one was interested in hearing it. The Tribunal’s task is to assess the reasonableness of the respondent’s actions in light of the information before it. The Tribunal assessed what the respondent did from the information before it. There was no “new evidence” in the sense that the claimant was unable to provide any conclusive proof by way of evidence that supported what he had said that showed why his position was correct. The respondent had to choose whose position to prefer. The respondent did so. That action was one which a reasonable employer could take. An equally reasonable employer might have taken a different view but the test is whether what the respondent did in the circumstances was fair and reasonable taking account of all the circumstances.[77]Each of the points raised by the claimant in relation to the allegation and his dismissal was taken into account by the respondent during the disciplinary process, which included the points raised in his appeal letter. The appeal hearing took account of the issues the claimant raised. The respondent chose to prefer the claimant’s colleagues’ position. That act was an act that a reasonable employer in the circumstances could have taken, taking account of the claimant’s position and each of the points he makes. The respondent required to make a decision. It did so and it acted reasonably in this regard.[78]At paragraph 69 the claimant alleged that he was given a final written warning because Mr Dixson, the claimant says, wanted to dismiss the claimant but could not and so issued a final written warning. While this was not a matter for the Hearing to determine, as the claimant had conceded the circumstances the law allows a final written warning to be reopened did not exist in this case, there was no obvious reason if the claimant was correct, why Mr Dixson did not proceed to dismiss. If the desire was to have the claimant dismissed, it was possible for this to have happened in relation to the conduct that led to a final written warning.[79]In the disciplinary appeal outcome letter of 18 October 2018 it is stated: “I have found that the hearing considered whether your actions constituted gross misconduct and that the result was that the allegations were found to be untrue. However, the disciplining manager, Mr Dixson, took into account that you intended the behaviour to be banter and that you intended the outcome of this banter to be better standards within the branch. He therefore lowered the sanction to a final written warning.” Thus the outcome of that original hearing could have been dismissal due to the nature of the claimant’s conduct, but due to the claimant’s explanation, the outcome was lowered to a final written warning. That does not support the claimant’s contention that he was given the most severe penalty; He was not dismissed and his representations successfully reduced the penalty.[80]The claimant referred to his not being able to read out his submissions at paragraph 73. We had discussed how the Hearing was to be conducted on the first morning. The claimant understood what submissions were and he chose to provide a written submission which he could supplement. I offered both parties a break following conclusion of the evidence but both parties were ready to proceed to submissions. The respondent’s agent set out his submissions verbally giving the claimant the opportunity to hear their position. The claimant’s written submission was fully taken into account and he was given the opportunity to make any further submissions. Each of the claimant’s submissions was fully considered (as set out at paragraph 73 of the reasons).[81]I note in passing that the claimant states in relation to paragraph 93 that he “was not prepared for submissions”. That was contrary to what the claimant stated during the hearing and is not consistent with the way in which he was able to deal with the issues arising and present his response to both the respondent’s submissions but also questions I asked of him. It is also incorrect to state, as he does in relation to paragraph 95, that the claimant was unable to elaborate on his written submissions. He was given a full opportunity to present all the points he wished and to supplement his written submissions, all of which were taken into account.[82]The claimant noted in relation to paragraph 75 that had he been able to refer to the full acts of the respondent, and not just the acts leading to his dismissal, he says he would have shown that the respondent was not a reasonable employer. The test in relation to unfair dismissal focusses on the reason for the dismissal and the respondent’s actions in relation to its dismissal of the claimant for that reason. That was the focus of the Tribunal’s inquiry and not in relation to other actions.[83]At paragraph 76 I repeated a submission from the respondent’s counsel who submitted that the “actual truth is not relevant since it is what was in the respondent’s mind at the time which is to be considered”. As a matter of law that is correct. The assessment as to whether or not the respondent acted fairly and reasonably is made from the information known to the employer at the time and not from information that is produced subsequently. The legal test in relation to the fairness of a dismissal, by reason of conduct, is set out in BHS v Burchell 1978 IRLR 379.[84]It is also useful to set out what the editors of Harvey on Industrial Relations and Employment Law (at Division D1, paragraph 6(f) at paragraph 863) say: “In determining the principal reason for the dismissal, the tribunal must not take account of events occurring subsequent to the dismissal, or even of events which predated the dismissal if they were not known to the employer when he dismissed the employee (W Devis & Sons Ltd v Atkins [1977] 3 All ER 40). Consequently, as the Devis case itself indicates, an unfair dismissal will not be rendered fair if the employer subsequently discovers grounds of misconduct which would have justified the dismissal had they been known earlier. The converse of the Devis principle is that if the employer decides on reasonable grounds, and after a proper inquiry, that an employee has committed a particular act of misconduct, and he dismisses the employee for that reason, the dismissal will not be rendered unfair if it subsequently transpires that the employee was innocent after all. It is not unlawful for the employer to be wrong, only to act unfairly.”[85]Paragraph 76 also noted that it is not what the Tribunal believes that is relevant but rather the focus is on what the respondent knew at the time and how it acted. That is a correct summary of the legal position. The claimant was seeking to show that his position was the correct one and that his colleagues were wrong. However, the issue for the Tribunal is not to assess whether the claimant was right in that regard but rather assess whether or not the respondent acted reasonably in reaching the conclusion it did from the information it had before it. I concluded that the actions of the respondent in all the circumstances of this case were fair and reasonably. They knew what the claimant’s position was, they considered it fully but chose, reasonably, to prefer the position set out by his colleagues. An equally reasonable employer might well have chosen to accept the claimant’s position but that did not mean the respondent did not act reasonably.[86]The claimant alleged that his evidence was ignored (in relation to his comments regarding paragraph 85). His position was considered but ultimately the respondent preferred the evidence of his colleagues. That was within the range of responses open to a reasonable employer on the facts of this case.[87]In relation to paragraph 87 the claimant pointed out I incorrectly referred to the fact that it was a year since Mr Driscoll had dealings with the claimant. It was in fact 9 months. This was an error on my part as the grievance outcome was in September 2018 and the appeal against dismissal was in July 2019. I have taken into account the claimant’s correction. I do not consider that the period of time makes any difference to the position. The claimant accepted that there was 9 months during which he had no relevant dealings with Mr Driscoll. The process that was adopted fell within the range of reasonable responses open to a reasonable employer.[88]The claimant alleged (in his reconsideration application) that those hearing his disciplinary and appeal hearing were not impartial. There had been no criticism of Mr Williams at the time of the disciplinary hearing and he considered matters fairly and reasonably. The fact that the claimant’s appeal against the final written warning had not been upheld by Mr Williams did not, in itself, suggest that Mr Williams could not fairly deal with the dismissal hearing. He had not been involved in the disciplinary process that led to the dismissal and was able to fairly consider those matters and there was no evidence put to him to suggest that he acted unfairly and no reason found for him not to be able to fairly consider matters. The claimant may have preferred another manager but that individual had been the investigator. Having investigated matters it was not appropriate to deal with the hearing. It was not unreasonable on the facts for Mr Williams to deal with the disciplinary hearing.[89]In relation to the appeal, the information before the respondent, including the claimant’s emails to HR, showed that he was comfortable with Mr Driscoll dealing with the appeal hearing. There was no evidence to show that either Mr Williams or Mr Driscoll did not fairly and reasonably consider all the facts in reaching their decision. Mr Driscoll considered matters afresh in relation to the claimant’s appeal and reached a decision that was reasonable on the facts.[90]The claimant again referred to his position in relation to the issues before the dismissing and appeals officer in relation to paragraphs 96 to 103. As indicated above the test is whether the respondent acted fairly and reasonably in relation to the decision to dismiss in light of the information before the respondent at the time the decisions were taken. The Hearing in relation to unfair dismissal is not a rehearing of the evidence and it would be wrong to do so. The focus was on the allegation that led to the dismissal. That was why the claimant’s questions which focused on acts unrelated to the act that led to his dismissal was not permitted to the extent they were not relevant to the issues to be determined. The claimant was fully able to challenge the basis for his dismissal and the facts that led to his dismissal, which he did fully.[91]The collusion and alleged lies referred to by the claimant at paragraph 109 to 113 were all matters that the respondent understood during the disciplinary process. It was matters weighed in the balance. The claimant sought to reargue the facts that were before the disciplinary processes (such as in relation to paragraph 111 and 112) and had been rejected.[92]The claimant alleged that his position ought to have been preferred in contrast to the other witnesses (such as in relation to paragraph 114) but there was no specific reason why those chairing the disciplinary and appeal hearing would unfairly choose to prefer the claimant’s colleagues as opposed to the claimant. While the claimant believed his colleagues were not telling the truth, his position was considered but ultimately not preferred. There was no reason why those making that decision did so unfairly. They considered the evidence before them and weighed all the factors in the balance, including the lengthy and detailed points made by the claimant (much of what is repeated in his application). They reached a decision which a reasonable employer could have reached.[93]While an equally reasonable employer might well have chosen to prefer the claimant’s position, as might have the Tribunal, ultimately the question is whether an employer, acting reasonably, could have did what the respondent did. The decision and process that was followed was within the range of responses open to a reasonable employer.[94]The claimant again suggested the Tribunal did not refer to all the evidence (see paragraph 115) but that is incorrect. All the evidence presented to the Tribunal was considered. This was not a rehearing of the matter that led to the claimant’s dismissal but an assessment of the fairness of the respondent’s actions.[95]The claimant in relation to paragraph 117 again asserted that those who dismissed him (and his appeal) “dismissed the evidence and accepted lies from colleagues”. He also asked whether the Judge dismissed his evidence because the claimant did not appeal against he final written warning. The claimant did appeal against the final written warning and all the facts were taken into account. In deciding that the dismissal was fair, the role of the Tribunal was not to consider who was telling the truth during the disciplinary process but assess the actions of the respondent in light of the statutory test of unfairness. Thus the claimant’s evidence was not “dismissed”. Rather, the Tribunal had to assess (and did assess) whether the respondent acted fairly and reasonably in all the circumstances. Not in the interests of justice to allow reconsideration[96]The points raised by the claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination having considered the facts presented during the hearing and applied the law. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour.[97]That broad principle disposes of all the points made by the claimant. There is no evidence that shows the Tribunal has missed something important or that new evidence is being presented that could not reasonable have been put forward at the time. The claimant was given a fair opportunity to present his case and challenge the respondent which he did. The claimant fairly and candidly conceded that the final written warning was based on his misconduct at the time and although harsh, it did not fall within the circumstances provided by the authorities that would allow the Tribunal to reopen the final written warning. That was a reasonable concession to make and the claimant engaged with the process and agreed that the main purpose of his unfair dismissal claim was to show that he was not guilty of any misconduct and that the decision to dismiss was accordingly unfair, irrespective of the final written warning.[98]The Hearing concluded and the judgment was issued on the basis of the information before it with both parties having been given a fair opportunity to present their case and hear each other’s submissions and present any response.[99]As paragraph 5 of the reasons records, the claimant was advised of the need to ensure that all relevant evidence was placed before the Tribunal to ensure it had all the information on which to make its decision. Time was spent during the Hearing discussing this and the rules as to evidence and how a Tribunal reaches its decision. The claimant was given a fair and fully opportunity to present his case and challenge the respondent’s witnesses (on the issues to be determined), which is what he did. The Tribunal carefully considered the facts and reached a conclusion in light of those facts whilst applying the law.[100]The claimant’s application for reconsideration is based on the fact that he argued he may not have been dismissed if he had appealed a grievance outcome that (he says) led to a final written warning. He relies on documents obtained close to the Hearing. However, the claimant did appeal against the issuing of a final written warning at the time. The claimant accepts that it is possible the sanction would have remained in place even if he did appeal. He also accepts that he was guilty of conduct that would have fairly led to some disciplinary sanction, albeit he says a final written warning was “harsh”. He accepted that it was not possible to reopen that issue. While he seeks to do reopen this after judgment has been issued, it is not just and fair to do so.[101]The claimant did in fact appeal against the final written warning and his points were taken into account. It was clear that his submissions at the disciplinary hearing that led to the sanction were fully taken into account (such that the outcome was a final written warning rather than dismissal) and that the appeal against the sanction was robust and considered the claimant’s points fully. It is unlikely that an appeal against an earlier grievance would have altered the position (since the claimant made his relevant representations during the disciplinary process).[102]The claimant’s application for reconsideration is also based on the fact that he argued his colleagues did not tell the truth in the disciplinary process and ultimately his position should have been preferred such that he would not have been dismissed. The Tribunal considered his arguments carefully but concluded that the respondent considered that the claimant’s colleagues’ position was preferred to that of the claimant. They did so after having carried out a reasonable investigation and a reasonable disciplinary process.[103]Ultimately the procedure that was followed and the decision to dismiss the claimant that was taken as a result all fell within the range of responses open to a reasonable employer. While some employers might have preferred the claimant’s position or undertaken a different procedure, an equally reasonably employer could have done what was done in this case. Documents[104]I do not consider that the respondent withheld documents such that it would be fair and just to reconsider the decision as asserted by the claimant.[105]Firstly, the documents were in the claimant’s possession before the Hearing and he had an opportunity to consider these and seek further time if needed. No further time was sought and the claimant was able to conduct his case and do so thoroughly and fairly. This is not a claim whereby new evidence has emerged following the Hearing. The claimant had possession of the documents before the Hearing and the issues arising were dealt with as a preliminary matter with the parties’ agreement.[106]Secondly, in relation to the particular documents, the September document was handwritten notes of an interview in relation to a grievance meeting. The claimant did not appeal against the grievance outcome and it is not certain that any appeal would have altered the subsequent disciplinary process that led to the claimant receiving a final written warning, against which he did (unsuccessfully) appeal.[107]No issue had been raised in connection with the letter of 24 September 2018.[108]Finally, the handwritten investigation notes from 4 June 2019 were the handwritten notes of the typed transcript that had already been disclosed to the claimant (and was referred to in the bundle). There was no explanation as to why the later production of this document created a particular disadvantage to the claimant.
Conclusion
[109]I considered the overriding objecting in reaching my decision to ensure the decision taken was fair and just. That applies to both the claimant and the respondent since justice requires to be achieved for both parties. I have done so carefully.[110]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the Hearing. It is not in the interests of justice to reconsider the decision the Tribunal reached.[111]The application for reconsideration is therefore refused under rule 72(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Apology for delays[112]Unfortunately the Tribunal system has been suffering from significant administrative delays which seriously impacted the passing of correspondence to the Employment Judge and thereafter the allocation of judicial time for the consideration of this application.[113]The initial emails from the claimant raising these issues were not passed to the Employment Judge until around March 2020. The claimant’s request for written reasons was not passed to the Employment Judge until May 2020. There were further delays in passing the information to the Employment Judge due to the impact of the ongoing pandemic.[114]Unfortunately due to a very significant (and unprecedented) backlog of cases and lack of judicial time, it has only just been possible to properly review matters and issue this judgment.[115]I apologise to the claimant (and respondent) for these delays which are regrettable but sadly unavoidable. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the reasons sent to the parties on 1 July 2020, are corrected as set out in strike out and bold type at paragraphs 30, 52, 87 and 116. Employment Judge Hoey Dated: 21 December 202021 December 2020 Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. EMPLOYMENT TRIBUNALS Claimant: Mr C Preston Respondent: Eurocell PLC Heard at: Manchester On: 3 and 4 February 2020 Before: Employment Judge Hoey REPRESENTATION: Claimant: In person Respondent: Mr Braier, Counsel JUDGMENT having been sent to the parties on 4 February 2020 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided CORRECTED REASONS
Conclusion
[1]This is a case for unfair dismissal. The claimant was representing himself and the respondent by Counsel. At the end of the hearing I was able to issue an oral judgment.[2]Written reasons were subsequently requested and these are now provided.[3]Due to the ongoing health pandemic and administrative matters, with the request for written reasons only relatively recently having been received, issuing of the reasons was delayed, for which the Tribunal apologises.
Preliminary matters
[4]I began the hearing by emphasising to the parties the overriding objective set out in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, namely to ensure that all decisions that are taken are made justly and fairly taking account of all the circumstances with due regard for justice. I also emphasised to the parties the need to ensure that the parties were placed upon an equal footing and that they should work together to achieve this.[5]I also explained the importance of evidence and how a Tribunal makes findings on the basis of evidence that it hears and that it was important for the claimant to ensure that any documents and information that he requested the Tribunal to consider be fairly put in evidence.[6]The parties had worked together to arrive at a bundle of 294 pages and the parties had produced three witness statements, one from the claimant and one each from the Dismissing and Appeals Officers. The claimant also produced a supplementary document on day 2 which was taken into account. Each of the witnesses confirmed that their statements were accurate.
The Issues
[7]I focussed upon the issues that required to be determined in this case in light of the claims that had been made and in particular in the absence of any case management. Before turning to the issues, a preliminary issue arose which related to a final written warning the claimant had received that was taken into account when he was dismissed. Final written warning issue[8]This was a case where the claimant had previously been issued with a final written warning. There was a discussion around the law pertaining to final written warnings and in particular the legal position as to the opening up of previous final written warnings in the course of unfair dismissal proceedings. The discussion centred around the case of Wincanton -v- Stone [2013] IRLR 178 and in particular President Langstaff’s judgment.[9]The claimant noted in his appeal letter that he felt the final warning was “a bit extreme”. He denied that he was a bully and said that he felt a verbal or written warning would have been sufficient and “fairish”. The final written warning was in respect of alleged bullying behaviour. Although the claimant admitted certain things and certain conduct, he denied that he was a bully.[10]There was an appeal meeting in respect of that final written warning. His position at the appeal hearing was that he thought the sanction was harsh. The respondent upheld the final written warning and found that while the claimant had been found guilty of gross misconduct and bullying behaviour, because he had intended the behaviour to be “banter”, the sanction and outcome had been lowered from dismissal to a final written warning. The appeal therefore failed and the final written warning stood.[11]I explained the effect of the authorities to the claimant and the 3 circumstances where a Tribunal in considering an unfair dismissal claim in respect of a claimant who had been subject to a final written warning can revisit or “open up” that final written warning.[12]The claimant candidly and fairly accepted that the issue with the final written warning was(1) not that it was manifestly inappropriate(2) nor that it was issued in bad faith,(3) nor that there were there no grounds to issue it. Instead he disputed the severity of it. He accepted that there was some form of misconduct but that it was too harsh to issue a final written warning. He describes the issuing of a final written warning as “extremely harsh”.[13]In light of the facts and having set out the legal position, the claimant accepted that the final written warning was not capable of being reopened in the course of this hearing and the basis of his challenge to the dismissal was that he was not guilty of the conduct which led to his dismissal. His position was that the individuals who complained against him had fabricated or exaggerated the circumstances, such that dismissal was unfair in light of all the circumstances, which included the final written warning to which he was subject. That approach was agreed with both parties and the final written warning was not a matter which was being “re-opened” in the course of the hearing.
Issues
[14]The parties agreed that there were therefore three main issues to be considered in this claim.[15]Firstly, what was the reason for the dismissal in the respondent’s mind that led to the claimant’s dismissal and was it a potentially fair reason, namely matters relating to the claimant’s conduct.[16]Secondly, whether the claimant’s dismissal in all the circumstances was fair which would require a consideration as to whether the employer genuinely believed in the claimant’s guilt, whether that belief was honestly held, whether there was as much investigation as was reasonable and finally, whether in all the circumstances dismissal was a reasonable sanction falling within the range of responses open to a reasonable employer.[17]Thirdly, and if the claimant’s dismissal was found to be unfair, what reduction should be made to any compensation on the grounds that the respondent argued the claimant would have been dismissed in any event and/or that he in some way contributed to his dismissal.[18]The claimant confirmed that re-instatement was his principal remedy in this case and it was agreed that a separate remedy hearing would be fixed in the event the claimant’s dismissal was found to be unfair.
Facts
[19]I now turn to my findings of fact which I make on the basis of the evidence that was led before this Tribunal. I only make findings so far as necessary to determine the issues which the parties have agreed and I make my findings based on the balance of probabilities, namely whether or not the particular facts are more likely than not to have happened.[20]The Tribunal heard evidence from the Dismissing Officer, Mr Williams, the Appeal Officer, Mr Driscoll, and the claimant. Each individual was appropriately questioned with the claimant being given assistance where necessary to ensure that relevant questions were put to each witness. The focus of the questions was in relation to the issues the Tribunal had to determine as agreed with the parties.
Background
[21]The respondent is a manufacturer, distributor and recycler of building products with a number of branches throughout the country. It supplies products to the trade and to the public and the claimant’s branch had around six staff. The claimant was employed as an Operative to serve customers and deliver goods. He was employed from 9 November 2015 until his dismissal.[22]The claimant was subject to a contract of employment and a disciplinary policy. The process in respect of a final written warning and dismissal is set out in the policy and “gross misconduct” is stated to include harassing or bullying colleagues or encouraging or engaging in any form of physical, verbal abuse or threatening behaviour to other staff.[23]Following a grievance that had been raised in around August 2018 a disciplinary process was instigated in respect of potential misconduct on behalf of the claimant. The grievance was heard by Mr Driscoll on 30 August 2018 and an outcome was issued on 24 September 2018. Claimant given a final written warning in light of his conduct[24]The disciplinary process that followed resulted in a final written warning being issued to the claimant in September 2018. The allegation was that the claimant had displayed bullying behaviour to colleagues as a result of alleged comments the claimant had made to colleagues, some of which the claimant had admitted. The claimant admitted that he engaged in banter and that he had raised his voice, albeit he did not believe he was bullying his colleagues.[25]A final written warning was issued for twelve months and he was warned that any future misconduct could result in his dismissal.[26]The claimant appealed against the severity of the sanction feeling it was harsh but he accepted that a warning would have been appropriate.[27]His appeal was refused on the basis that the outcome had already been reduced from dismissal to a final written warning. The appeal was heard by Mr Williams. Incident on 4 June 2019[28]The claimant’s dismissal stems from an incident that happened on 4 June 2019. This involved the claimant in an altercation with two of his colleagues. The claimant and the parties are in dispute as to what precisely happened on that day, albeit the claimant admits that there was an altercation.[29]The claimant accepts that he was concerned about his colleague’s parking and that he attended an office with two colleagues. The claimant accepted that he leaned on the door during the discussion and that almost immediately following the incident a senior manager was telephoned by one of his colleagues to complain. As a result of that telephone call, a senior manager attended site a few hours later to take statements from the individuals, including the claimant. Investigation[30]The investigating manager’s position was that it was alleged the claimant had barred an employee from leaving the meeting following a verbal confrontation. That member of staff who suffered from Asperger’s Syndrome had suffered anxiety as a result.[31]As a result of the call that was made, an investigation was undertaken and within a few hours statements were taken. The claimant provided his statement on the 4 June 2019. He accepted that he had leaned on the door and the statement said he would only let the employee out after his questions were satisfied. The claimant adjusted the written record to say he wanted answers at the meeting and that the individuals were free to leave the meeting at any time.[32]The claimant accepted that the employee said he was phoning the Police and the claimant said the individual should “do it”. The claimant accepted that the colleague threatened to call the colleague’s brother who was a Police Officer.[33]The statement of Mr Roddy, one of the colleagues, which was taken at the time, stated that there was a discussion with the claimant earlier in the morning and the claimant subsequently followed the individual into the office and closed the door standing behind it. That individual said that the claimant made it clear he was not leaving until the situation was resolved. He alleged that the claimant was confrontational and that he felt trapped because he believed that the claimant was preventing him from leaving the office. He said that he phoned the Police and when the call did not connect he phoned his brother who was a Police Officer. He said he felt intimidated and that he believed the claimant refused to let him leave, such that he texted his girlfriend to state this.[34]The statement of Mr Greenhalgh, the other colleague in the office, that was taken at the time, confirmed that the claimant followed the individual into the office and he believed that the claimant stood as if blocking the door. He said that the claimant did not allow the individual to leave and that the colleague tried to call the Police.[35]The final statement taken (from a colleague who was outside the room, Mr Halligan) stated that he could see the claimant blocking access to the door. He remembers this as he had tried to distract customers with whom he was dealing at the time.[36]The claimant disputed a number of the facts which were found in the statements. Disciplinary hearing[37]A disciplinary hearing was convened, following a disciplinary invite letter. This hearing was convened for 10 June 2019 with the specific allegation that on 4 June 2019 the claimant prevented an employee from leaving the office which could be considered threatening behaviour and thereby potentially amounted to gross misconduct. With the invite letter the claimant was given a copy of the investigation minutes following his own meeting and the three other statements that had been provided together with the disciplinary policy.[38]The claimant made a number of written annotations to these statements which he provided to Mr Williams who was to chair the disciplinary hearing.[39]The claimant did not raise any issue with Mr Williams hearing the disciplinary hearing.[40]The claimant made a number of comments, including that he did not dispute the fact that he leaned on the door. He also made no adjustment to the comment in Mr Halligan’s statement where it was alleged that the claimant had “blocked the door”.[41]There was no comment on Mr Greenhalgh’s statement by the claimant when Mr Greenhalgh alleged that the claimant was not allowing the individuals to leave the office, albeit there are other parts of the statement that the claimant disputed.[42]Finally, in Mr Roddy’s statement where Mr Roddy alleges that he tried to leave the office and the claimant prevented him from so doing, the claimant made no comment other than that Mr Roddy did not actually call the Police as he failed to dial the number properly.[43]The claimant sent a very detailed letter challenging a number of issues on 7 June 2019. This is a detailed letter whereby the claimant alleges that this was an attempt by his colleagues to “stitch” up the claimant and have him dismissed. He provided detailed narrative about the background.[44]At page 9 of the letter the claimant accepted(1) that he closed the door,(2) that his colleague said he would call the Police and(3) that a senior manager was called by the individual to come and sort matters out.[45]He said that he noted one of the individuals claimed that the claimant locked the individual in the office. The claimant said that “Lee was free to push past me at any time if he was really desperate to get out”.[46]The claimant stated that each of these individuals knew his final written warning was still in place and he believed they would do anything to get him dismissed.[47]The disciplinary hearing took place on 24 June 2019 and at the hearing the claimant stated that he did not stop the individuals from leaving as they could have gone at any time. He repeated his assertion that he believed he was being stitched up in an attempt to have him dismissed. There was no specific evidence provided by the claimant to substantiate the suggestion of being stitched up, other than the email he sent on 7 June 2019.[48]Prior to receiving the outcome of the disciplinary hearing, the claimant sent a further email on 20 June 2019 to HR commenting that after he had been issued with the final written warning when he had allegedly bullied a colleague, he had worked with this colleague with “no issues”. The claimant referred to his colleagues as “a pair of weasels” and made reference to another as “another colleague’s bitch” and that another colleague was another colleague’s “puppet”. The claimant repeated the fact that he believed he was being stitched up by these individuals but was unable to provide any substantive evidence to support that assertion. Outcome - dismissal[49]The outcome letter was provided to the claimant late on 20 June 2019. This states:- “During the hearing we discussed your behaviour since you received a final written warning in September 2019. You submitted written notes prior to the meeting in which you described scenarios where you believed your colleagues to be provoking you into confrontational situations. You believed they were doing this as they wanted you to leave the business. We discussed the incident on 4 June 2019. You explained that you have requested on multiple previous occasions that the van is parked at the bottom left of the car park. You believe that Jason, Branch Manager, had asked Lee to park the van where you prefer to park your car in order to antagonise you. I found no evidence that it was done to antagonise you and I was presented with a justifiable reason why the van was parked there which was to enable the relocation. You deny that you were standing to block the office door and you maintained that it was a convenient place for you to stand. You stated that you did not consider the situation to be confrontational. You did not believe you were stopping Lee from leaving the office, however, you acknowledge that your actions were not appropriate and the situation should not have happened. You also stated that your colleagues are all intimidated by you. You asked me to consider that you had not received any customer complaints. I do not deem that an absence of customer complaints is particularly relevant to the allegations. In order to draw my conclusion, I considered whether the incident itself occurred, having reviewed the witness statements I have no doubt that it occurred, although I acknowledge that you have a different perspective to the event to that of your colleagues. I have considered the impact that this had on everyone who was present. One colleague was so upset that he needed to leave the branch to compose himself, another felt he was intimidated and sat in his car. While I expect provisional disagreements occasionally occur I deem it extremely unhealthy and unprofessional for people to be so troubled that they leave the premises. I would consider this reaction to indicate the individuals to be experiencing stress. I acknowledge you are passionate about achieving high standards and positive outcomes for the branch, however, the evidence indicates to me that that your passion can be misplaced and manifests itself in inappropriate behaviour when you find that others are not in agreement with you. At the point where your final written warning was issued in September 2018 you were requested “where you are concerned about the standards of work of a colleague please raise this with a manager for them to deal with, additionally where you do not agree with a management decision please challenge it constructively and do not enter into any arguments”. Whilst you raise your concerns with a manager it does not appear to me that you allow them to deal with the matter and instead try to force the issues, additionally you did not present your concerns constructively and you entered into an agreement. Therefore, I deemed that you failed to meet the instruction that followed your final written warning. As such, I concluded your actions amounted to misconduct within the context of the final written warning you will therefore be dismissed for threatening behaviour”.[50]The claimant was found guilty of the allegation against him and he was dismissed, with the claimant being paid in lieu of notice.[51]In passing I record that the claimant states at the introduction to his witness statement that “While I accept the charges against me are serious and would warrant a dismissal, I am innocent of all charges.” Appeal[52]The claimant sought to appeal his dismissal and asked following the dismissal that his appeal be heard by the manager who carried out the investigation. It was then suggested this manager might not be impartial as he had investigated matters. upheld the final written warning that was issued to the claimant.[53]The claimant then asked that his appeal be heard by either Mr Driscoll (Northern Manager) or the Chief Executive. When the claimant was advised that Mr Driscoll might not be able to hear the appeal on the date that was fixed the claimant stated that unless the Chief Executive can hear the appeal “he wouldn’t be comfortable with anyone else”.[54]The appeal was subsequently heard by Mr Driscoll. The claimant did not raise any issue with this.[55]In the claimant’s email of 26 June 2019 he apologises for his part in the incident. He notes that it would not have happened had the colleague parked correctly. He repeated his assertion that he did not stop anyone from leaving the office and that both colleagues were free to leave at any time.[56]The appeal meeting took place on 1 July 2019, during which the claimant emphasised that he believed the events to have been exaggerated. He stated that he felt the outcome was harsh for what happened but did not provide any further information on any additional information following the dismissal meeting.[57]The outcome letter was issued on 2 July 2019. Mr Driscoll found that the several witness statements indicated that the individuals felt intimidated and scared to leave the room. There was no new evidence provided by the claimant and as such, his appeal was dismissed.
Law
[58]Section 98 (1) of the Employment Rights Act 1996 states that:- “In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show: - (a) the reason (or if more than one the principal reason for the dismissal); and (b) that it is either a reason falling within subsection 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”[59]Section 98(2) of the Employment Rights Act 1996 states that:- “A reason falls within this subsection if it… relates to the conduct of the employee”.[60]Section 98(4) of the Employment Rights Act 1996 contains the test in this area: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer): -(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case”.[61]In accordance with the tests set out in British Home Stores Ltd v Burchell 1980 ICR 303 the Tribunal must consider:-(i) Did the respondent believe the claimant was guilty of misconduct?(ii) Did the respondent have in its mind reasonable grounds upon which to sustain that belief? and(iii) At the stage at which that belief was formed, had it carried out as much investigation into the matter as was reasonable in the circumstances of the case?[62]Range of reasonable responses:-(i) When assessing whether the Burchell test has been met, the Tribunal must ask whether dismissal fell within the range of reasonable responses of a reasonable employer and this test applies both to the decision to dismiss and to the procedure. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. The band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.(ii) The starting point should always be the words of section 98(4) themselves. In applying the section the Tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair. In judging the reasonableness of the dismissal the Tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer; it is not for the Tribunal to impose its own standards. The Tribunal has to decide whether the dismissal and procedure lay within the range of conduct which a reasonable employer could have adopted.(iii) In many cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another. The function of the Tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair. However, the band is not infinitely wide and is not a matter of procedural box ticking[63]The Employment Tribunal must not substitute its decision for that of the employer and must look at the matter through the lens of a reasonable employer: could a reasonable employer have carried out the procedure that was undertaken, and could a reasonable employer have dismissed for the reasons relied upon in this case? In other words, it is important not to substitute the Tribunal’s decision for that of the employer, and the matter must be looked at in the round to decide whether or not the respondent acted reasonably: Sainsburys v Hitt 2003 IRLR 23.[64]As it is not a criminal trial, the employer does not need to prove the guilt of the employee beyond reasonable doubt – it is sufficient that the employer acted reasonably in treating the misconduct as a sufficient reason to dismiss in the circumstances known to the employer at the time.[65]It is important to emphasise that in determining whether the procedure was carried out was fair and whether or not the decision itself was fair must be considered from the perspective of a reasonable employer. In order words, could a reasonable employer in the position of the respondent with the information that was before the respondent at the time have fairly dismissed taking account of size, resources, equity and the merits of the case.[66]It is important to emphasise that the Tribunal must not substitute its decision for the employer and decide whether it would have dismissed but rather focus on the matter from the perspective of a reasonable employer.[67]In particular, the Tribunal must consider the information that was available to the respondent at the time and not information that is provided subsequently.[68]The Tribunal also takes into account the comments of then President Langstaff in the Wincanton -v- Stone 2013 IRLR 178. At paragraph 37 the court emphasised that the Tribunal should take into account the fact that a final written warning has been issued, and in particular not go behind a warning to take into account factual circumstances giving rise to the warning.[69]It is worth quoting that paragraph from the judgment in full: “We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning. A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98(4), applies. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer's act in treating conduct as a reason for the dismissal. If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. Where the earlier warning is valid, then:(1) The Tribunal should take into account the fact of that warning.(2) A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it sees appropriate.(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore Tribunal should be alert to give proper value to all those matters.(5) Nor is it wrong for a Tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.(6) A Tribunal must always remember that it is the employer's act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.'' Compensation[70]In addition to a basic award (Section 119) Employment Rights Act 1996, Section 123(1) Employment Rights Act 1996 provides for a compensatory award which is such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer (capped at a year’s pay).[71]Contributory conduct:-(i)Section 122(2) Employment Rights Act 1996 states: Where the Tribunal considers that any conduct of the claimant before the dismissal ... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly(ii)Section 123(6) Employment Rights Act 1996 states: Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion regard to that finding. Polkey[72]Where evidence is adduced as to what would have happened had proper procedures been complied with, there are a number of potential findings a Tribunal could make. In some cases it may be clear that the employee would have been retained if proper procedures had been adopted. In such cases the full compensatory award should be made. In others, the Tribunal may conclude that the dismissal would have occurred in any event. This may result in a small additional compensatory award only to take account of any additional period for which the employee would have been employed had proper procedures been carried out. In other circumstances it may be impossible to make a determination one way or the other. It is in those cases that the Tribunal must make a percentage assessment of the likelihood that the employee would have been retained. Submissions[73]The parties presented very detailed and professional submissions in this matter. The Tribunal has carefully considered the submissions from both parties. Respondent’s submissions[74]Counsel noted this was a claim for unfair dismissal only. It was a claim where the claimant had been issued with a final written warning in circumstances where the claimant had accepted it was not open to him to re-open that warning.[75]In terms of the reasonableness of the sanction it was argued that the dismissal is only unfair if the approach that was taken was one that no reasonable employer could have taken, which applies to procedure, to investigation, belief in guilt and reasonableness of sanction.[76]Counsel argued that the actual truth was not relevant since the question is what was in the mind of the decision maker at time. Similarly what the Tribunal believes is not relevant. The test is one of reasonable responses.[77]In this case the focus is solely on the solitary incident on 4 June 2019. It was an incident of such seriousness that Mr Greenhalgh considered it necessary to call a senior manager to come and deal with it.[78]A senior manager investigated those present. It was agreed that during the course of the incident one of those present attempted to make a call to the Police and then his brother, a Police officer. The claimant accepted this at the time albeit challenged it now (but the evidence before the respondent at the time shows he accepted it).[79]The witness statements are consistent in that the claimant refused to allow the individuals to leave the office and prevented them from doing so. This is found in the witness statements. The claimant was blocking access to the door at all times.[80]The claimant’s position before the respondent was not clear. In his investigation meeting he said he “leaned on the door” but he said that he would only let the individual leave once his questions were answered. When he wrote notes on the transcript he said “not quite true. Wanted answers but free to leave at any time.” That freedom was seen from the claimant’s letter of 7 June when the claimant said the individual “was free to push past me at any time if he was really desperate to get out”. Then in the disciplinary meeting the claimant confirms he was standing against the door. These comments gain a context from the suggestion in the claimant’s letter his colleague was “free to push past if really desperate get out”, ie he could have forced his way out.[81]It was also submitted that while the claimant made various comments on the statements (showing his disagreement), at no point did he write anything when they asserted the claimant prevented Mr Roddy from leaving the room or as one witness says, the claimant was blocking the door at all times.[82]It was submitted that while the claimant said his colleagues were “stitching him up”, this is not backed up with anything of substantive. There is nothing before the decision makers to show any stitch up.[83]Moreover the claimant’s credibility was in issue given he argued the witness outside could not see anything and yet the claimant conceded in cross examination that it would have been possible to see the claimant was standing at the door.[84]This issue is not what the claimant believes but whether the respondent acted reasonably. There is clear witness evidence to sustain reasonable grounds in the belief, 2 witnesses within the room and 1 outside with the claimant providing no evidence to challenge their position. All he argues is that they are not telling the truth but gives no evidence to support that.[85]Ultimately the respondent takes account of all the circumstances, the witness evidence, the call to Police and brother and contact to girlfriend together with the call to senior management.[86]There was no further steps the respondent could have taken to test the matter. There was nothing else to put to them and nothing was suggested by the claimant.[87]The respondent acted fairly in dealing with the disciplinary issue. Those hearing the disciplinary hearing and appeal were impartial and fair. The fact around 9 months year before the disciplinary chair conducted previous process of itself does not “count them out” since that was a separate process in a separate matter. There was no suggestion of any ongoing contact and he had not been involved in the matter in question. There was no suggestion of collusion and there was no issue raised about Mr Williams acting as disciplinary officer before or when he conducts the hearing.[88]There is also no issue raised by the claimant as to Mr Driscoll hearing the appeal which is not surprising since the claimant asked that he hear it.[89]It is clear that dismissal falls within the range of reasonable responses. In Wincanton at paragraph 35 the court makes it clear that although not inevitable, the reasonable expectation or usual result of misconduct following the issuing of a final written warning, wil be dismissal which is consistent with the disciplinary handbook.[90]The claimant himself was aware of the risk of dismissal if there was further misconduct during the subsistence of the final written warning. The misconduct in this case is related given it is about interaction with fellow employees making dismissal so clearly in the range of reasonable responses.[91]The claimant was not summarily dismissed but paid in lieu of notice.[92]Counsel also argued for a 100% reduction on the ground that the claimant was guilty of contributory conduct and would have been dismissed in any event. His conduct was such that dismissal was inevitable given the outstanding final written warning. Claimant’s response[93]The claimant was prepared to provide his submissions and did not need any further time to respond.[94]In his submission he argued that the witness did not ring his policeman brother but said he considered ringing him. In his submission the witnesses wanted the claimant dismissed.[95]The claimant argued that there were many inaccuracies in the statements, such as in the suspension meeting.[96]In short the claimant argued that the decision was outwith the range of reasonable responses. He argued that he was telling the truth and did not act in such a way as to justify dismissal in his view. Decision and reasons[97]I took the time to consider the submissions of both parties very carefully and all the evidence led before the Tribunal together with the statutory language and legal tests and authorities in this area as I set out above. I approach matters in line with the issues that were agreed to be determined. Was there a potentially fair reason for the claimant’s dismissal[98]There was not real dispute that the reason for the dismissal related to the claimant’s conduct. This is clearly set out in the allegation in the invite letter in connection with the incident on 4 June.[99]This was an incident that was of sufficient seriousness that a senior manager was called immediately at the time (by a witness) and for statements to be taken within hours of that call being made. It was also of sufficient seriousness for one of the individuals present to suggest the Police be called and that he contact his brother, a Police Officer. He also contacted his girlfriend about the incident (saying he felt intimidated by the claimant).[100]The two employees present at the time (other than the claimant) gave consistent accounts as to what happened in their statements which information was before the employer at the time. Both individuals stated that the claimant sought to prevent them from leaving the room and a third employee who was present outside at the time, who was able to see through the frosted glass door, could confirm the claimant stood at the door, a fact subsequently accepted by the claimant. The claimant accepted and conceded during cross examination that his outline could be seen.[101]The claimant also accepted that he had leaned on the door during his first investigation statement and he stated that the others were free to “push past him at any time if they really desperate to get out”.[102]The information before the employer at the time therefore was that the claimant sought to prevent his colleagues from leaving the room. The claimant did not dispute the comments made by the individuals on their statements, albeit he focussed on the fact that he believed that these individuals were seeking to persuade the respondent to dismiss him by stitching him up.[103]The claimant accepted that he had no substantive evidence to support his assertion and there was no specific evidence he had in order to challenge the witness statements these individuals provided. His position was that he believed the individuals were exaggerating and that they were seeking to have him dismissed.[104]I am satisfied that the reason why the respondent dismissed the claimant was for matters relating to the claimant’s conduct. Did the respondent genuinely believe in the claimant’s guilt[105]I have considered this question carefully and looked at the evidence that was presented to the Tribunal. Mr Williams and Mr Driscoll both considered all of the evidence that was provided to them, including not just the statements obtained during the investigation but also the detailed evidence the claimant provided, both in terms of the challenges to the statements obtained as part of the investigation and the claimant’s detailed communications setting out his position.[106]While the claimant strongly believes he is telling the truth (and even if he were), that is not the issue for the Tribunal to determine since the question for the Tribunal is whether or not the respondent reasonably believed that the claimant was guilty of the misconduct that was alleged at the relevant time. The Tribunal must take into account the evidence before the respondent in assessing the fairness of the dismissal, not evidence that is produced subsequently.[107]In these types of cases the respondent must make a choice. It must decide whom it believes between two competing accounts. The respondent in this case considered the fact that the witnesses may “have it in” for the claimant, that is, they may seek to fabricate evidence and seek to exaggerate what had happened. The difficulty in this case was the absence of any justification or any evidence that supported that assertion.[108]There was no substantive evidence provided by the claimant that would allow the claimant to substantiate his assertion that these individuals were not telling the truth. There were no further efforts or steps that could be taken to verify either position and nothing was suggested to the respondent at the time. The claimant’s position was that the information the witnesses provided was exaggerated and that his position should be preferred.[109]Ultimately the respondent had to decide whether to accept the claimant’s position or that provided by the other statements.[110]The claimant’s evidence that he provided to the respondent during this process did not challenge the fact that the individuals did not leave the room and that the claimant stood at the door. He argued that they were not forcibly held back but he accepted to standing at the door.[111]There was no evidence the claimant could provide to challenge what the witnesses had said other than he believed he was telling the truth and they were not.[112]It was accepted by the respondent that one of the individuals tried to call the Police and his brother (a Police officer) and that a senior manager was called almost immediately to try and sort it out. It was also accepted that one of those present felt so intimidated by the claimant not letting him leave, such that he texted his girlfriend to state this.[113]There was also no suggestion by the claimant that the individuals in question would have provided any different evidence had they been spoken to further. There was no suggestion that there was any further evidence or matters that ought to have been put to these witnesses, which would have yielded a different result.[114]There was also no specific issues or positions set out that Mr Williams or Mr Driscoll would have changed his view in respect of any other evidence that the claimant had.[115]There was no suggestion that Mr Williams or Mr Driscoll did not properly consider the evidence before them. There was no evidence to challenge the decision of Mr Williams or Mr Driscoll and they considered the position and made a decision on the basis of the information they had before them.[116]Both the dismissing and appeal officers sought reasonably to assess the evidence they had and reach a view. There was no evidence that they acted unreasonably, nor that they were not independent or impartial. The previous matter involving the claimant and Mr Driscoll had happened around 9 months over a year before when they worked in a different area of the business and the claimant had specifically asked that Mr Driscoll deal with it. The respondent agreed to the claimant’s request in that regard.[117]The Tribunal accepted the evidence led that these individuals properly considered all of the evidence before them. The claimant had accepted that he was standing in front of the door. He said the individuals could have pushed past him if desperate to get out. While the claimant may believe that he acted properly, from the evidence before the respondent, they reasonably concluded that the claimant had not acted appropriately. The individuals looked at the evidence and reached a view that was based on the information before them.[118]The claimant did not like the fact that his position was not preferred, but there was no evidence to suggest that the conclusion reached by the respondents in not accepting his evidence was unreasonable.[119]The test is one of reasonableness and whether the respondent acted reasonably in all the circumstances. The respondent acted reasonably in the specific circumstances of this case by preferring the evidence of the claimant’s colleagues.[120]The Tribunal therefore concluded that the respondent did believe in the guilt of the claimant and that the respondent acted reasonably in so believing. Was the belief honestly held[121]The Tribunal considered all of the evidence and was satisfied from the evidence presented to the Tribunal that the respondent did genuinely and honestly believe in the claimant’s guilt.[122]Even if the claimant was telling the truth, the respondent had to make a decision as to whom it believed given the information that the respondent had before it at the relevant time.[123]In all the circumstances I am satisfied that the respondent acted in a fair way, balancing the evidence the claimant provided with that provided by the other witnesses in this case. Having assessed the evidence presented to the Tribunal and carefully considered the position I am satisfied that the respondent honestly believed in the claimant’s guilt.[124]The respondent did take into account the points made by the claimant. It had, for example, granted the claimant’s request that Mr Driscoll deal with the matter. The evidence clearly showed that the respondent before dismissing the claimant balanced the evidence that had been obtained from both sides and ultimately genuinely and honestly believed in the claimant’s guilt. Was the claimant’s dismissal fair in all the circumstances[125]The claimant accepted that he knew that he was subject to a final written warning and in the event of further misconduct he could be dismissed. In this case the misconduct that was alleged was similar to that which had led to the final written warning, namely interaction with colleagues.[126]The respondent carefully considered the competing evidence before it. It also considered the claimant’s position in detail and assessed whether or not there was any reasonable basis upon which the claimant’s position could be sustained in preference to that advanced by the witnesses.[127]In the Tribunal’s view the respondent reached a view which a reasonable employer could have arrived at. Ultimately, the process and procedure that was carried out was not perfect but this is not a counsel of perfection. The procedure and outcome was reasonable, one which a reasonable employer in all the circumstances could have carried out.[128]The Tribunal must consider the information that was before the respondent at the time of dismissal (and appeal), and not subsequently. On the basis of the information before the respondent at the time, the respondent acted fairly and reasonably.[129]There was no specific challenge by the claimant Mr Williams dealing with the hearing and the claimant specifically asked for Mr Driscoll to deal with the matter. Further, there was no suggestion that either individual did not properly consider the competing evidence that was before them. The claimant’s position has always been that the witnesses exaggerated the position.[130]Both the disciplinary officer and appeal officer properly balanced the perspectives that were presented and reached a conclusion which was reasonable in the circumstances from the information in their possession. The procedure that was followed was reasonable, falling within the range of responses open to a reasonable employer.[131]The claimant was given the opportunity to present his position (and he did so at length). This was fully considered.[132]Having considered all the evidence I am satisfied that the procedure that was followed by the respondent that led to the claimant’s dismissal fell within the range of responses open to a reasonable employer. The decision to dismiss[133]The Tribunal carefully considered the decision to dismiss and assessed this against the statutory requirements within the Employment Rights Act 1996 and the authorities set out above.[134]The claimant accepted he was subject to a final written warning which had been issued following his conduct, which the claimant accepted was inappropriate, even if he disputed the seriousness of it. The Tribunal has taken all the facts of this case into account, in light of the size and resources of the respondent and equity and substantial merits of the case.[135]The full factual matrix was considered and balanced by the respondent. All evidence was examined and a decision was taken in light of the information known to the respondent at the time, including the information the claimant communicated to the respondent during the disciplinary process.[136]The Tribunal understands that the claimant strongly maintains his innocence. Ultimately, however, the issue is whether the decision to dismiss was fair in all the circumstances. As the claimant concedes in the preamble to his witness statement, the charges against him were serious and could warrant dismissal.[137]In the preamble to his witness statement the claimant states that he was innocent of the charges “which I aim to prove”. The assessment of the decision to dismiss is based on the information that was available to the respondent at the time and not subsequently. The purpose of the Tribunal Hearing was to consider whether or not in all the circumstances (at the time of dismissal and appeal) the respondent acted fairly and reasonably in all the circumstances in dismissing the claimant. Information provided by the claimant after his appeal was concluded (such as information provided at the Tribunal hearing) is not relevant to assessing whether the decision to dismiss at the time was fair, if that information was not available to the respondent at the time.[138]The Tribunal has carefully considered all the information that was before the respondent at the time in its assessment of the fairness of the claimant’s dismissal.[139]The claimant knew that the behaviour which was alleged was categorised as serious in terms of the respondent’s disciplinary policy and that it was potentially gross misconduct. Dismissal was a possibility given the prevailing facts.[140]The respondent carefully considered the evidence before it, including the claimant’s assertions and challenges to the evidence presented. Ultimately the other witness evidence was preferred. That was an option open to the respondent on the facts of this case. The evidence that was accepted included both individuals present with the claimant and the witness who was outside the room, who observed the location of the claimant. It was reasonable for the respondent to prefer that evidence to the claimant’s in the circumstances.[141]In reaching its decision the Tribunal has taken into account and applied the law as set out by Langstaff, P in Wincanton as set out above. The claimant was subject to a final written warning which had been issued as a result of the claimant’s (inappropriate) interaction with his colleagues. While that warning may be considered harsh or even extreme by the claimant, it was issued as an alternative to dismissal, the respondent having considered the mitigation presented by the claimant. The claimant had accepted that he was responsible for some of the conduct in question but argued the final written warning was extreme.[142]The claimant fully understood the consequences of the final written warning. He was warned that further misconduct could result in his dismissal. The respondent reasonably concluded from the information before it (both from the claimant and the other witnesses) that there had been further misconduct. In all the circumstances, it was reasonable to dismiss the claimant.[143]The Tribunal has concluded in light of all the facts of this case that the decision reached by the respondent to dismiss the claimant was a decision that a reasonable employer could have made in all the circumstances. Claimant’s dismissal was fair[144]The Tribunal is satisfied, having carefully considered all the facts, that the decision to dismiss the claimant was fair and reasonable in all the circumstances, taking account of the size and resources of the respondent, equity and substantial merits of the case.[145]In all of the circumstances therefore the Tribunal finds that the claimant’s dismissal was fair and his unfair dismissal claim was not well founded.