Mr G Askew v Commissioners For HM Revenue and Customs: 2501117/2024
EMPLOYMENT TRIBUNALS
Case No 2501117/2024
Between
Mr. G. AskewClaimantCommissioners For His Majesty’s Revenue and CustomsRespondent
Before
Employment Judge T.R. Smith.Ms. H. Hogben (instructed by counsel) for claimantMr. P. Halliday (instructed by counsel) for respondentDate 5 November 2025
JUDGMENT
The complaint under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1996 was presented within the time limit set out in section 147 of the said act. The complaint under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1996 (detriment) is not well founded and is dismissed. The complaint under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (automatic unfair dismissal) is not well founded and is dismissed. The complaint of unfair dismissal under section 94 of the Employment Rights Act 1996 is not well founded and is dismissed.
REASONS
[1]At the start of the hearing the tribunal sought to clarify the issues and ascertain what concessions, if any, were made by either party. The following were the agreed issues:-[3]Did the claimant take part in the activities of an independent trade union at an appropriate time :- 3.1.By sending the 12 May 2023 message, was the claimant taking part in the activities of an independent trade union? [Mr Halliday expressly conceded that the claimant was so doing]. 3.2. If so, was he doing so at a time at which, in accordance with arrangements agreed with, or consent given by his employer, it was permissible for him to take part in the activities of a trade union? [The respondent contended that the activities were not undertaken at an appropriate time namely at a time outside the claimant working hours or at a time within his working hours at which in accordance with arrangements agreed with or consent given by the respondent it was permissible for him to take part in the activities of a trade union.][4]Detriment claims 4.1. Was the respondent’s sole or main purpose for initiating disciplinary proceedings to penalise the claimant for taking part in the activities of an independent trade union by sending the 12 May 2023 message? 4.2 Was the respondent’s sole or main purpose for requiring the claimant to attend the disciplinary hearing on 18 January 2024 to penalise the claimant for taking part in the activities of an independent trade union by sending the 12 May 2023 message? [Ms Hogben indicated the claimant’s case was put under section 146(1)(b) TULR(C)A with the emphasis on “penalising”] [Mr Halliday did not initially concede either of the above amounted to detriments in law but did so by the time submissions were handed up][5]Time limit 5.1.Were the complaints (the detriment complaints only) made within the time limit in section 147 of TULR(C)A? The tribunal had to decide: 5.1.1. Was the claim made to the tribunal within three months (plus early conciliation extension) of the act complained of? 5.1.2. If not, was there a series of similar acts or failures and was the claim made to the tribunal within three months (plus early conciliation extension) of the last one? 5.1.3. If not, was it reasonably practicable for the claim to be made to the tribunal within the time limit? 5.1.4. If it was not reasonably practicable for the claim to be made to the tribunal within the time limit, was it made within such further period as the tribunal considered reasonable?[6]Unfair dismissal claims The reason for dismissal. 7.What was the reason (or if more than one, the main reason) for the dismissal ie. what were the facts known or beliefs held that caused the respondent to dismiss the claimant? 7.1. Was it that the claimant took part in the activities of an independent trade union at the appropriate time by sending the 12 May 2023 message? If so, the claim succeeded. [Ms Hogben expressly put her case under section 152(1)(b) of TULCRA] 7.2. Was it the claimant’s conduct? If so, the tribunal was required to consider the reasonableness of the dismissal. Reasonableness of the dismissal. 8.Did the respondent act reasonably or unreasonably in treating the claimant’s conduct as sufficient reason for dismissing the claimant, taking into account all the circumstances, including the size and administrative resources of the respondent. This involved consideration of the following matters: 8.1. whether the respondent had reasonable grounds for believing the claimant had committed the misconduct alleged; 8.2. whether the respondent carried out as much investigation into the matter as was reasonable; 8.3. whether the procedure followed was fair, taking into account the ACAS Code of Practice on Disciplinary and Grievance Procedures; 8.4.In addition the claimant relied upon the following specific allegations of unfairness.• An inconsistency in the allegations between the managers review letter, the terms of reference, the interview with the claimant and the allegations pursued at the disciplinary hearing.• The penalty imposed by the respondent; dismissal being disproportionate having regard to the claimant’s previous record.• The use of fabricated evidence namely the addition of footer message on the e-mail of 12 May and pursuing an allegation of bullying and harassment, when no such allegation existed.[9]Contribution[10]If the claimant was unfairly dismissed, did he cause or contribute to his dismissal by blameworthy conduct? 11.If so, was it be just and equitable to reduce the claimant’s compensatory award? If so by what proportion?[12]Polkey[13]Was there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 14.Given the shortness of time the tribunal indicated it would only address the issue of liability, Polkey and contribution. Applications[15]Ms Hogben made an application on the first day of the hearing to amend the claim form to plead a breach of paragraph 6 of the ACAS Code of practice. For the oral reasons given the tribunal rejected that application.
The evidence
[16]The tribunal had before it a bundle of documents consisting of 770 pages. 17.It reminded the parties that it would only have regard to those documents to which it was expressly taken. 18.It had before it the following statements. For the claimant• a statement of Mr Gordon Askew, the claimant For the respondent• a statement of Mrs Lillian Peake the claimant’s line manager.• a statement of Miss Therese Isaac the determining officer.• a statement of Ms Rachel Forster the appeal officer. Abbreviations AUP. Acceptable Use Policy. A policy of the respondent with particular relevant to information technology. EAS. The respondent’s expert advice service. ER- The respondent’s advice service. EAS and ER gave, inter alia HR advice ERA 96. The Employment Rights Act 1996. EQA10. The Equality Act 2010 IA .Industrial action, an abbreviation used in many of the internal emails and notes PCS. The Public and Commercial Services Union. TULCRA 92. The Trade Union and Labour Relations (Consolidation) Act 1992 WFM. Workforce management, a planning system which included employees’ details of their work and leave commitments to which the claimant, along with others worked upon, to ensure appropriate staff numbers were available to deliver services. Other key personalities Ms Janet Cameron, the respondent’s investigating officer. Ms Rachel Farmer, branch secretary and PCS representative. Mr James Kane, PCS Vice chair. Mr John Smith, the claimants trade union representative in the disciplinary proceedings. Ms Sindy Skeldon, deputy director. Mr Paul Campbell ,senior officer manager and Mrs Peakes direct line manager. Mr Campbell reported directly to Ms Skeldon. Mr Ryan Lagay HR business partner. In terms of seniority he was on a higher grade than Mr Paul Campbell but below Ms Skeldon Mrs Kath McIntosh, a manager on the same grade as Mrs Peake who raised a concern as to the e-mail of 12 May 2023. Mr Joseph Lee. A manager two grades above Mrs McIntosh Mr Steven How. An employee in EAS who supported Miss Isaacs. Credibility of witnesses. 19.Mrs Peake was a straightforward witness. Her evidence was reasonably consistent with the respondent’s policies. She was a credible witness. 20.The claimant’s evidence was not always as convincing, for example he said despite being a long-standing trade unionist that he didn’t know what the word “ scab” meant. He also changed his account of the agreement in respect of facility time. 21.Miss Isaacs was subject to detailed cross examination. She fairly conceded relevant points . She was clear and unshaken on her decision-making process. That evidence was consistent with the contemporaneous documents. She was a credible witness. 22.Ms Forster was again a credible witness who gave a clear account of her decision-making process consistent with the contemporaneous documents Findings of fact Time. 23.The claimant entered into ACAS early conciliation on 08 April 2024 and a certificate was issued on 24 April 2024. 24.The claimant presented his claim to the employment tribunal on 23 May 2024.
Background
[25]The claimant commenced employment with the respondent on 01 August 1995. Thus he was a long serving employee. 26.At all material times he was based at Benton Park View, Longbenton Newcastle upon Tyne. 27.The claimant was employed as an executive officer-resource manager until the termination of his employment on 25 January 2024. 28.The tribunal had no evidence before it that the claimant had anything other than a clean disciplinary record at dismissal. 29.The claimant’s role encompassed the planning and deployment of telephony staff to handle incoming customer calls. 30.His line manager was Mrs Lillian Peake. The claimant enjoyed a good working relationship with Mrs Peake. Facility time[31]At all material times the claimant was a trade union representative of the PCS. He had held that position for approximately eight years. 32.The respondent had a facility policy entitled “Employee relations: facilities for union representatives” (the “facility policy”) (208 to 221) 33.The claimant as a trade union representative had a facility time allowance of 33 days of the year to spend on his union activities, funded by the respondent. He was required to log his facility time and submit a report on what was known as a form B each month. 34.The claimant sought to contend that he was unaware of the contents of the facility policy . 35.The claimant asserted he had no recollection of ever reading or been prompting to read the facility policy and this should fully or partly excuse any proven wrong doing. The tribunal found he was well aware of the contents of the policy for the following reasons:-• Firstly the claimant accepted he received an induction from the PCS and the tribunal’s trade union member considered (to which the residue of the tribunal agreed) that it was highly unlikely the policy would not have be drawn to the claimant’s attention as it would have been central to his activities as a trade union representative.• Secondly the claimant had the opportunity to familiarise himself with the policy, which at all material times was available on the respondent’s intranet. Criticism was made by Ms Hogben that the respondents should have trained the claimant specifically on the facility policy. The tribunal did not accept that criticism. The principal responsibility for acquainting himself with the policy fell upon the claimant and the PCS to ensure its representatives functioned efficiently and within the agreement reached with the respondent.• Thirdly the claimant clearly knew some of the detail of the policy as each month he completed a form B.• Fourthly the claimant accepted in cross examination he knew the fundamentals of the facility policy and specifically that facility time was not to be used for the planning or promotion of industrial action. The industrial dispute. 36.The Benton Park view site is one of the largest PCS branches ,with over 3000 members. 37.From 10 May 2023 until 02 June 2023 there was a period of targeted industrial action by the PCS. 38.It involved approximately 600 staff. 39.The tribunal found that the claimant was anxious the industrial action were successful and was so motivated, despite his assertion to the tribunal that he was “indifferent”; which the tribunal concluded was inherently improbable. 40.It reached this conclusion the three principal reasons:-• Firstly it considered that a trade union representative would always be anxious to ensure strike action was successful in order to use that as a negotiating tool to extract concessions from employer• Secondly, prior to 12 May ,the claimant wrote to other trade union officials as follows: “I say 87% decent but I’d love to know why the 54 didn’t take part”. This was a reference to turn out for strike action and the number who did not participate. It clearly demonstrated the claimant was keen to maximise the effectiveness of the industrial action.• Thirdly at 11.49 on the morning of 12 May the claimant sent an email to other trade union representatives (502) which read “the AI is definitely affecting telephony… for Wed the handled calls was only 25% and then 26% yesterday…” This was not consistent with indifference. 41.The industrial action impacted upon the respondent’s ability to manage customer calls at a particularly busy time of the year 42.Mr Kane emailed Ms Farmer on 11 May at 16.29 (621) “more scabs today than yesterday”. She noted in an email two minutes later that there were “69” scabs, 338 out”( 623). Within four minutes of the last email between Ms Farmer and Mr Kane. Ms Farmer sent the claimant an internal email to the claimant’s HMRC address entitled “today’s list of logged on” (624/625). (The tribunal will return, later in his judgement to the significance of the timing and content of this e-mail.) The list related to only employees who were not engaged in strike action but were within scope. The tribunal found the claimant was a key member of the PCS seeking to maximise the effectiveness of the IA The 12 May e-mail and the disputed footer 43.On 12 May 2023 between 1225 and 13.58 the claimant sent personally addressed messages to 67 colleagues by MS Teams. The emails were limited to those employees who were in scope but had not joined the industrial action. 44.The e-mail was in the following terms:- Hi, I’m one of the BPV PCS Reps and the branch have reported that you've been logged in during the targeted Employer industrial action. the branch are just checking that all eligible members are actually aware that they’re in scope and know how to claim from the targeted strike fund. If weren't aware that you are included in the scope, please check your personal email as you should have received an email last week advising on what steps to take. If you can't find the email, please check your spam / trash / deleted items and if there’s no email, please contact the branch to let them know you work in Employer ( sic ) but didn’t get the email last week. The branch email address is: pcslongbenton@gmail.com Further info is also available on the PCS website: https://www.pcs.org.uk/campaigns/pcs-pay-pensions-jobs campaign Thanks, Gordon 45.In e-mails subsequently produced by Mr Richard Southin and Ms Nikki Clark ( two recipients of the 12 May e-mail) to the respondent there was a disputed footer which the claimant contended was fabricated which said:- “PCS pay campaign We are currently running a fresh ballot to renew our mandate for industrial action. This is required by law every 6 months”. 46.In the course of the subsequent disciplinary proceedings the respondent accepted that the disputed footer did not appear on the claimant’s original emails. 47.In cross examination the claimant accepted that if the purpose of the email of 12 May was to promote industrial action (which he denied) seeking to persuade the 67 recipients to join the strike could cause harm to the respondent. However he asserted that he was simply seeking to increase awareness of the strike and the funding available to those who went on strike. 48.On 12 May 2023 at 17.17 (520) the claimant forwarded to himself the list sent to him the previous day by Ms Farmer with added comments next to each name such as “off all week”, “since 24 April” “in yesterday” “today” and “in”. To obtain that information the claimant used the respondent’ systems. The tribunal concluded that the claimant was seeking to obtain information as to why employees in scope were not taking part in strike action . This record significantly undermined the claimant’s explanation that he just used MS Teams to see if the recipients had received the email of 12 May. He was not. He was checking up on them. 49.On 16 May 2023 Mrs Peake was invited to a meeting by Ms Skeldon, Mr Lagay and Mr Campbell as there were internal concerns as regards the claimant’s e-mail of 12 May, which had been brought to their attention. 50.The concerns emanated from an email sent by a manager, Ms McIntosh to Mr Joseph Lee on 12 May at 12.44 copying in, amongst others, Ms C Skeldon and sending a screenshot of the email. She wrote :- “Someone on my team has also been sending (sic) something like this .They feel that this is harassment. Should PCS have access to information as to who is logged on and then uses (sic) information to contact us? Should they be using official comms methods for IA – related matters… I don’t feel that this is right and if colleagues are feeling “harassed” by this contact, is there something we can do to stop this?” (78). 51.Ms Skeldon then emailed that day at 13.09 (77) to amongst others, Mr Lagay seeking advice and wrote “please see below for urgent advice/escalation, TU should not use HMRC systems; how do they know this individual has logged on and surely this is harassment? Thoughts please, I am really concerned about this” 52.It is proper to record that nowhere in Ms Mc Intosh’s e-mail did she make a complaint of bullying ( the relevance of this will become apparent, later, in the judgement). In the subsequent investigation the person who perceived they had been harassed by the email of 12 May did not wish to take matters further. 53.Mrs Peake contacted the claimant on 16 May and explained the respondent was concerned about a potential breach of the standards of conduct policy (i.e. the respondents’ disciplinary policy). 54.When Mrs Peake met the claimant she explained that she was gathering information and that a form would then be submitted to EAS to decide on the next steps. 55.The claimant, in summary, explained his behaviour in the following terms. 56.The claimant said Ms Farmer asked him to send a message as some people in employer services didn’t appear to know they were eligible to take part in industrial action. He did not know how Ms Farmer had obtained information about who was logged on during the industrial action. 57.He did not access any of the respondent systems to obtain the list of names. 58.Ms Farmer did not draft the email he had sent out on 12 May but warned the claimant to be careful not to promote industrial action and he believed he had not done so. 59.A note was kept of the discussion (287/290) 60.Mrs Peake wrote to the claimant on 19 May (291) using a template entitled “managers review” and indicated an investigator would be appointed to look at the following allegations• unauthorised access to HMRC systems,• using HMRC IT facilities to promote industrial action and• bullying 61.She stated that whilst the concerns were potentially serious the claimant was not being suspended although that would be kept under review. 62.The respondent should have realised at this stage that an allegation of bullying could not succeed on the basis of the evidence obtained. At its highest there was a possibility of harassment in the general sense of the word. The tribunal considered, having regard to the respondent relevant policy that it might be said that the 12 May email had the potential to be considered as harassment, looked at its highest, from the perspective of the respondent. 63.The manager’s review was sent to HR and on the basis of the information it was classified as “level of misconduct – initial assessment gross misconduct. HR also indicated that the matter should be referred to a formal investigation. There was nothing before the tribunal to demonstrate that it was Mr Lagay who made this assessment or Ms Skeldon. The tribunal did not find this was evidence of a prejudgement that subsequently infected the residue of the disciplinary process. It was simply, as stated, an initial assessment on the basis of the information then available prior to a formal investigation. Nothing was set in stone. 64.The tribunal could find no cogent evidence that the classification of the concerns was in any way influenced by senior management. 65.On 24 May 2023 Miss Isaac was appointed as the determining officer for the claimant’s investigation (100) 66.Ms Isaac was herself a member of the PCS. 67.On 25 May 2023 Miss Isaac informed the claimant of her role and explained that if gross misconduct was established the respondent could impose a final written warning or summarily dismiss. Further she advised the claimant that respondent could dismiss the claimant and re-engage at a lower grade coupled with a final written warning ( 103). 68.On 05 June 2023 the claimant was supplied with the terms of reference (114):- It is alleged that Gordon Askew has used HMRC systems/IT without a legitimate business need to promote industrial action by contacting employees who were logged on to inform them they were in scope to strike. It is alleged that Gordon Askew has used HMRC systems/IT without a legitimate business need to obtain information on employees that were logged on/working and not striking. It is alleged that the conduct by Gordon Askew in contacting colleagues who were logged on to inform them they were in scope to strike was inappropriate and may amount to bullying. 69.The claimant was referred in the terms of reference to the policies and procedures that appeared relevant, as far as the respondent was concerned. 70.The claimant was informed Ms Cameron would act as the investigating officer. 71.At this point it is helpful to summarise the key parts of the policies upon which the respondent relied. 72.The tribunal has recorded the key policies and not simply every policy the respondent made reference to, given the considerable repetition. Even in the policies the tribunal has quoted from, there is still an element of repetition. The relevant policies The disciplinary policy 73.The disciplinary policy (257/276.) 74.Given that the claimant worked eight years as a trade union representative doing casework including disciplinaries the tribunal found that he would have had a good working knowledge of this document 75.The policy set out examples of offences which the respondent regarded as potential gross misconduct and emphasised that proven gross misconduct could lead to dismissal without notice, even for a single breach. 76.Two particular examples of gross misconduct featured in the policy, relevant to this claim namely:-• “serious breaches of any HMRC policies and procedures including but not limited to…AUP”• “serious misuse of technology… but not limited to using technology in a way which may harm HMRC”. The AUP policy 77.The AUP policy was a policy that the tribunal was told was part of the mandatory training of every employee. This was not challenged. The claimant accepted he was aware of the AUP policy. 78.The policy clarified what was meant by the respondent’s IT systems and networks. It meant all the software … and hardware … you need to use to carry out your day-to-day job’ 79.It also stated, ‘These resources should only be used for the business purpose for which they have been provided…. “ 80.The AUP went on to explain that “always have a clear and direct business reason for accessing HMRC information” and “do not, or make an attempt to:• access or search for any customer data, HMRC colleague details [ tribunal emphasis] or your own HMRC records, unless you have a legitimate business need to do so and you are authorised to do so by virtue of your role within HMRC” and that “HMRC systems may not be used to promote industrial action [tribunal emphasis] . 81.Employees were warned that inappropriate use of systems could lead to disciplinary action, including dismissal. 82.The claimant agreed in the course of the internal disciplinary process that he was aware of the “golden rule” that the respondent systems were not to be used to promote industrial action and that information about colleagues was only to be accessed for legitimate business reasons authorised in his role. Managing Industrial Action: Guidance for TU reps (KB0017149) 83.The policy contained the following:-• “There are specific restrictions that apply to the use of HMRC facilities for anything related to the promotion of, or taking of industrial action” and• “our department’s IT equipment must not be used to promote industrial action or to notify TU members of meetings to discuss industrial action. This includes circulating material to non-union members or colleagues who haven’t asked to receive it”[ tribunal emphasis] 84.The tribunal found that it was highly probable this would have formed part of the claimants initial training as a trade union representative undertaken by the PCS. Given the PCS was involved in industrial action it further considered it was likely that there would have been some form of briefing to trade union officials in terms of industrial action . The policy was available on the respondent’s internal systems . The tribunal did not find it was the responsibility of the respondent to train the claimant on this policy. as asserted by Ms Hogben. HR24020 Employee relations: Facilities for union representatives (KB0018584) 85.It was stated under ‘Use of facilities relating to Industrial Action’:• There are specific restrictions that apply to the use of HMRC facilities for anything related to the promotion of or taking of industrial action.• Departmental IT equipment must not be used to promote industrial action 86.The tribunal already made its finding as to the claimant’s knowledge of this policy. HR24170 Employee relations: Managing industrial action KB0018158[87]The policy emphasised that there were specific restrictions related to the promotion of industrial action and a person must not :• use our department’s IT equipment to promote industrial action or notify TU members of meetings to discuss industrial action. This includes circulating material to non-union members or colleagues who haven’t asked to receive it, doing so will be treated as a disciplinary offence”[88]This again formed a policy that was available on the respondent’s internal systems and the tribunal considered, having regard to the claimant’s position as a trade unionist, that had a responsibility to acquaint himself with the contents of the same. It did not accept Ms Hogben’s submission that he should have been specifically trained on the policy. HR22003 – Conduct: your conduct and behaviour at work (KB001659)[89]The policy said:- “we all have a responsibility to treat others in the way they wish to be treated - not to do so may amount to bullying or harassment. HMRC will not tolerate bullying or harassment and, if proved, we will treat such behaviour as a disciplinary offence. For further information refer to the Bullying and harassment guidance”. The investigation. 90.On 28 June 2023 Ms Cameron interviewed the claimant (322/407) who was accompanied by a trade union official. 91.The investigation was somewhat delayed, in part because the respondent wished to interview Ms Farmer, who was absent due to sickness. No criticism was made by the claimant as to the time the process took, so the tribunal need say no more. 92.Ms Camerons report was completed on 31 October 2023 (165 to 198 plus extensive appendices) and a copy sent to the claimant. She recommended that there was a case to answer in respect of all three allegations. 93.Miss Isaac’s resolved, after reviewing the report and the appendices, there was sufficient evidence to proceed to a disciplinary hearing. The disciplinary hearing. 94.On 29 November 2023 the claimant was invited to disciplinary meeting by Miss Isaac (161/164), originally set for 07 December 2023 95.The allegations the claimant faced was set out in the letter in the following terms: –
Background
[1]On 12/05/2023, used an HMRC system (MS Teams and/or WFM) without a legitimate business need to check the status of employees who had been identified as eligible and in scope for the targeted industrial action. This is a potential breach of:• Acceptable Use Policy (AUP)• Acceptable Use of Internet and IT systems (including the handling of customer records)• Managing Industrial Action: Guidance for TU reps (KB0017149)• HR24020 Employee relations: Facilities for union representatives (KB0018584)[2]On 12/05/2023, used HMRC systems (MS Teams) without a legitimate business need with the intention to promote industrial action by contacting 67 employees who were logged on to HMRC systems to inform them they were eligible and in scope for the targeted industrial action. This is a potential breach of:• Acceptable Use Policy (AUP)• Acceptable Use of Internet and IT systems (including the handling of customer records• HR24170 Employee relations: Managing industrial action (KB0018158)• HR24020 Employee relations: Facilities for union representatives (KB0018584)• Managing Industrial Action: Guidance for TU reps (KB0017149) 3.On 12/05/2023, bullied Kath McIntosh due to the Teams message you sent her. This is a potential breach of:• HR22003 – Conduct: your conduct and behaviour at work (KB001659)• HR20508 – How to: Recognise and deal with bullying, harassment, and discrimination (KB0016613). 96.Miss Isaac had HR support from Mr How from EAS. The tribunal was satisfied that the ultimate decision was reached by Miss Isaacs alone and that there was no evidence Miss Isaacs or Mr How were any way influenced or pressured by either Ms Skeldon or Mr Lagay or any other member of senior management 97.Whilst the tribunal found there was occasional contact between Miss Isaacs and Ms Cameron that was principally for the former to understand the reason for delay and to ensure the claimant was kept informed of progress. The only none procedural matter discussed was Ms Cameron told Miss Isaacs that whilst initially it was thought the claimant had accessed WFM, in fact she now believed the claimant had used MS Teams . The claimant would not have been misled as in her report at page 198 she referred to MS Teams and WFM in the alternative. 98.The tribunal did not find any cogent evidence that the line between an investigating officer and determining officer was impermissibly blurred in this case. 99.Attempts to arrange the meeting were unsuccessful for a variety of reasons. 100.Eventually, on 18 January 2024 the disciplinary meeting was held. (642/647) 101.Present was the claimant, his trade union representative, Mr Smith, a note taker and Miss Isaacs. 102.On 25 January 2024 the claimant received an email dismissing him for gross misconduct (649/666) 103.Only the first two allegations were found proven. The third allegation, bullying and harassment was dismissed. 104.The tribunal had regard to the letter in its entirety. The mere fact it has chosen only to highlight a number of points does not mean it did not carefully consider the decision in its totality. 105.Starting with allegation one. 106.Miss Isaac considered, given the comments the claimant had recorded next the names of employees who received the email of 12 May that to find out that level of information the claimant had monitored and used an HMRC system without a legitimate reason 107.She accepted that it was unlikely the claimant used WFM but had used, as the claimant admitted, MS Teams. She was aware from the investigative process the claimant had accepted that he hovered over each individual employee’s picture by using MS Teams to see whether they were in work during the strike (643). She considered that the purpose of the claimant using MS Teams was to monitor the inscope colleagues so that the claimant could notify and promote industrial action and that the claimant did not have a legitimate business need to check/monitor colleagues attendance status. She found and that the claimant’s activity was a misuse of HMRC systems and not linked to his duties as an HMRC employee and thus was a breach of the AUP policy, the acceptable use of Internet and IT systems policy, managing industrial action guidance and the employee relations: facilities for union representatives’ policy. She found the allegation proven. 108.Turning to allegation two. 109.Miss Isaac discounted completely, as is clear from her outcome letter the disputed footer on the claimant’s email in determining the allegation. (657). 110.She did not accept the claimant’s explanation that there was a requirement to check that trade union members contact details were correct as they had been reminded of the same just two days previously and the claimant’s representative, Mr Smith, agreed that it was “incumbent upon members to update their own information” 111.She further considered that if the true purpose of the email of 12 May was only to check members contact details there was no reason for the further information contained therein even if there was some confusion amongst PCS members whether they were or weren’t in scope. That was a matter for the PCS to address and not one that permitted the use of the HMRC systems to promote industrial action. 112.She considered it improbable that the staff who attended work would have been unaware of the targeted industrial action taking place given the absence of colleagues online, in the office or in team meetings. 113.There was no reason why the PCS could not have contacted its members using their own private email details if it was really to check that they had received previous notifications. Mr Smith, on behalf of the claimant agreed that information as regards industrial action could only go to members personal email addresses. 114.Miss Isaacs found that the claimant was seeking to promote industrial action. In part she relied upon an email exchange between the claimant and a Mr Wilson who contacted the claimant on receipt of the email of 12 May. The claimant responded to Mr Wilson in the following terms “No bother mate, not fancy some paid time off like?? I’d love it but even though I work supporting employer, the branch said it was only the actual area is doing the graft!” In the tribunal’s judgement that was a reasonable conclusion open to her. 115.She noted that the claimant admitted that the principal motivating factor for the email was to alert those individuals about their eligibility to take strike action and whilst there was reference to a personal choice, the opening sentence, the branch have reported that you have been logged on during the industrial action” implied they have done something wrong. 116.The matter was further aggravated in her view by the claimant submission that he agreed he was going to use MS Teams to send follow-up messages to individuals. 117.She found the second allegation proven as there was no legitimate business need to send the messages and there was a breach of the AUP, and the employee relations: managing industrial action policy, employee relations: facilities for union representatives’ policy and managing industrial action guidance for trade union representatives’ policy. 118.Turning to allegation three Miss Isaac noted the statement given by Ms McIntosh to Mrs Cameron but concluded that the concern was insufficient to satisfy her the allegation, as framed, was proven. It did not satisfy the ACAS definition of bullying even though that that might have been the perception of the recipient. 119.Miss Isaac noted the claimant had alleged that the investigative and disciplinary meeting was driven by senior managers and only instigated because of the fact he was a trade union representative. She rejected that assertion. She considered the email of 12 May gave reasonable cause to implement an investigation. 120.She found both allegation one and allegation two were gross misconduct. 121.She did not immediately assume that simply because gross misconduct was established that dismissal was the automatic sanction. 122.Miss Isaac was aware of the claimant’s long service and clean disciplinary record. 123.She expressly considered the possibility of final written warning but rejected that as an appropriate penalty 124.She did so because she considered there were aggravating factors such as the claimant’s denial that the message promoted industrial action and that she did not find the explanations offered by the claimant to be honest or credible. There was no acceptance of wrongdoing such that she could not be confident there would not be a repetition, and coupled with a lack of remorse was such that she considered that dismissal for gross misconduct was the only proportionate response. 125.She found the claimant clearly knew (indeed he admitted) that he could not promote industrial action as an experienced representative. 126.She did not accept lack of knowledge of the policies was a satisfactory excuse as the claimant had an obligation to acquaint himself with the relevant policies. 127.She considered that had the claimant persuaded the individuals to strike that would have caused greater damage to the respondent The appeal 128.The claimant was advised of his right of appeal. 129.On 05 February 2024 the claimant lodged an appeal against dismissal (669/676) 130.On 08 February 2024 Ms Forster was allocated as the appeal officer. 131.Ms Forster had been a member of the PCS but was no longer a member. She had no particular bias against the PCS. 132.The appeal meeting was held on 21 February 2024 (679/692). Present was the claimant, his trade union representative Mr Smith, Ms Forster and a note taker. 133.The approach taken by Ms Forster was that she was not to rehear the entire case but to review the reasonableness of the decisions taken by Miss Isaacs, having regard to the grounds of appeal. 134.She was more senior than Miss Isaacs and had the power to overturn all or part of the decision. Even if she found the allegations proven she had the power to substitute a different penalty. 135.On 01 March 2024 Ms Forster dismissal the claimant’s appeal. (694/705) 136.The tribunal had regard to the outcome letter in its entirety. The mere fact it is chosen only to highlight a number of points does not mean it did not carefully consider the decision in its totality. 137.Ms Forster had to deal with a lengthy list of grounds of appeal. 138.Ms Forster addressed each ground of appeal in turn. 139.Firstly the claimant contended he was dismissed for potential ,and not actual breaches of the respondent’s policies and that a higher burden of proof was required to dismiss a long serving employee. 140.Ms Forster found that the outcome letter clearly stated the reasons why the policies were breached together with reference to relevant policies and why the claimant was dismissed. The reason for the penalty was contained in the dismissal letter. Length of service had not been ignored. 141.Secondly the claimant contended that policies utilised including managing industrial relations guidance for trade union reps and employee relations facilities for union reps which he had never read or even knew of their existence. 142.Ms Forster did not accept, as the claimant contended, it was the respondent’s responsibility to ensure he was aware of the policies. She considered the policies were available and it was incumbent upon him to acquaint himself with those documents relevant to his role and the PCS had a responsibility to ensure those who undertook its activities were aware of the policies. . In any event the claimant himself accepted that even without reference to a policy, that he was aware that a trade union representative was not permitted to use HMRC systems to promote industrial action. 143.Thirdly the claimant contended the fact Miss Isaac assumed that because he had been a trade union official he had a high level of experience whereas the claimant spent much of his time dealing with casework and did not know what he was doing was wrong. 144.Ms Forster considered that as the claimant knew trade union communications were sent to private email addresses and not via the respondent systems that it was unlikely he was not aware of the distinction. The claimant himself accepted that even if he had not read the policies that he could not promote industrial action via the respondent’s systems. 145,Fourthly the claimant contended that Miss Isaac made an assertion that checking if an individual was online in MS Teams without a business reason was a breach of the AUP. The claimant contended he had not received any training in MS Teams and denied he had checked the status of colleagues and said he would have contacted them regardless of their status, and he only contacted a small number of individuals. Mr Smith, accepted on behalf of the claimant that MS Teams was covered by the respondent’s AUP but MS Teams was perceived as less formal than emails. 146.Ms Forster found the claimant’s explanation implausible given his lengthy experience and position and the fact the claimant accepted he was aware of the AUP policy. She agreed with the decision of Miss Isaacs that the claimant was in breach of the AUP. 147.Fifthly the claimant contended he was not promoting industrial action. 148.He accepted he did not consider how the messages may have impacted upon the recipients or how they would interpret it and accepted with hindsight he would not have sent the messages at all or would have changed the wording. 149.Ms Forster found that the email of 12 May was not solely to inform and found there was an element of promoting industrial in action. 150.Sixthly the claimant contended he did not view MS Teams as a departmental system with any strict rules on its use. 151.Ms Forster rejected that argument on the basis that it was used extensively by the respondent and was clearly and explicitly included in the AUP. 152.Seventhly the claimant contended Miss Isaac had pre-judged matters. The claimant accepted that no suggestion of unfairness or prejudgement had been raised at the time with Miss Isaacs. Ms. Forster probed the basis of this ground of appeal but was not satisfied with that assertion . 153.She considered that the dismissing officer’s outcome was balanced and had noted that matters raised by the claimant had been considered. She was not satisfied there was any cogent evidence of a pre-judging of the claimant’s case. 154.Seventhly the claimant objected to the weight given to the conversation between himself and Mr Wilson who he explained was a good friend and it was “banter.” 155.Ms Forster considered Ms Isaacs was entitled to take the email exchange into account when trying to determine the claimant’s intention in respect of the email of 12 May and found that the phrase “not fancy some paid time off” was encouragement to Mr Wilson to strike. 156.Eighthly the claimant claimed the penalty was based on a flawed and preconceived assessment of the claimant’s experience as a trade union representative and the implication he could not be trusted was deeply hurtful. Ms Forster found the decision-maker carefully weighed up the issue of penalty and the seriousness of the offence against factors that favoured the claimant and the penalty was justified. 157.Ninthly, and someone repetitiously the claimant maintained he was unaware of the respondent’s policies. Ms Forster considered in the circumstances, if the claimant had not drafted a similar email before for the union, it was even more important that he had taken steps to acquaint himself with the correct position. He had not. 158.Ms Forster did not accept the 12 May email was sent simply to check the recipients had received previous correspondence from the PCS. It was an email targeted at 67 colleagues who had chosen not to strike. It was not sent to the wider PCS membership. If it was simply to check email addresses there was no need for the residue of the email. 159.Tenthly the claimant admitted with hindsight that he would have done things differently and was critical that Miss Isaac did not ask him what he regretted about his actions. Ms Forster considered the claimant took little responsibility and blamed others such as managers for not advising him of policies and branch representatives. The information volunteered from what he learnt was principally the regret of losing his job and the impact that had on his finances and relationships. Ms Forster was not satisfied the claimant fully understood or accepted the seriousness of his actions. 160.Eleventhly the claimant raised the severity of the penalty. He contended that Miss Isaacs proceeded on the basis that it also made use of WFM. Ms Forster rejected that assertion, having referred to the relevant extracts of the decision letter where it was clear that by the time of the hearing the claimant knew it was MS Teams that it was the relevant HMRC system that it was alleged was not used for a legitimate business reason. She was satisfied, even having regard to the claimant’s personal circumstances, that the penalty was reasonable. Submissions 161.Both counsel provided helpful detailed written submissions which they amplified orally. 162.The tribunal does not mean any disrespect to either counsel by not repeating those submissions in any detail. The mere fact that each and every submission has not been referred to does not mean the tribunal did not have full regard to the submissions in their entirety. Further findings and conclusions Time Section 147 of TULCRA provides as follows: – 1) An employment tribunal shall not consider a complaint under section 146 unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them] , or(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable. For the purposes of subsection (1)— (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period; (b) a failure to act shall be treated as done when it was decided on. (3…….. (4) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a). 163.The claimant relied upon two detriments namely: –• the institution of disciplinary proceedings on 16 May 2023.• The requirement to attend a disciplinary meeting on 18 January 2024. A requirement for him to attend a disciplinary hearing was made in writing on 29 November 2023. Whilst the letter of 29 November 2023 referred to an earlier hearing date that was varied by the parties, for a variety of reasons, which are unnecessary to rehearse. 164.The claimant entered into ACAS early conciliation on 08 April 2024 ( Day A) and a certificate was issued on 24 April 2024 ( Day B). 165.The claimant presented his claim to the employment tribunal on 23 May 2024. 166.It was common ground that the institution of disciplinary proceedings on 16 May 2023 was, on its face, out of time. 167.Ms Hogben submitted that there was an act extending over a period of time starting with the institution of the disciplinary proceedings and that continued up to and including the disciplinary hearing which resulted in the claimant’s dismissal. She relied upon the decision in Hendricks -v- Metropolitan Police Commissioner [2002] EWCA Civ 1686 in support of her proposition that there was an ongoing state of affairs. If time ran from 16 May, as she submitted, then applying 292A of TULCRA92 both detriments were in time. 168.Mr Halliday conceded that the two detriments were acts that extended over a period of time, and if the second detriment was the actual attendance at the disciplinary hearing on 18 January then they were both in time. 169.However Mr Halliday submitted the second detriment, on the reading of the agreed issues, took place on 29 November 2023. It was out of time. Even though he accepted the detriments were acts extending over a period of time, the last act had to be in time. The fact the last act had consequences namely it led to the disciplinary hearing and dismissal was not on point. 170.He submitted that neither Hendricks nor the case the tribunal drew to both parties attention, Hale v Brighton and Sussex University Hospitals NHS Trust EAT 0342/16 assisted the claimant. Both were based on the EQA10 and utilised different wording and related to an alleged discriminatory dismissal. Under TULCRA a detriment was separate and distinct from a dismissal, hence the necessity of both sections 146 and 152. 171.The tribunal reached the conclusion that both detriment claims were in time. It did so for the simple reason that it was satisfied that the instruction on 29 November for the claimant to attend a disciplinary hearing was an ongoing instruction and continued up to and including the disciplinary hearing. The act complained of on 29 November was an act that extended over a period. It wasn’t simply a one-off act with continuing consequences. It was a continuous state of affairs. In any event the act of the 29 November was to attend a meeting on 07 December. That did not take place. The parties agreed a later date. This adds to the tribunals conclusion it was not a one-off act. It was a continuing requirement. The tribunal found support to its conclusion in the decision of Hale. Hale held that the instigation of disciplinary proceedings created an ongoing state of affairs (see especially paragraph 42). Whilst the wording under TULCRA is not identical to the EQA 10, the difference is negligible and not a good reason for not following the principles in Hale. 172.Thus putting aside the merits of the second detriment both detriment claims were in time and given the concessions properly made that the two detriments were part of a series of similar acts, time ran from 18 January. Given the last act was on 18 January 2024, applying section 292A the claimant was entitled to add one month after day B hence the whole detriment claim was presented in time 173.Thus the tribunal had jurisdiction to consider the merits of the detriment claims. Section 146 and 152 TULCRA 92 174.In approaching matters under section 146 and 152 tribunal has had regard to the ACAS Code of Practice on ‘Time off for trade union duties and activities’ (January 2010). Section 146 Detriment on grounds related to union membership or activities. (1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— (a)……. (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, (2) In subsection “an appropriate time” means— (a) a time outside the worker's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services)], he is required to be at work….. (5) A worker …. may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment by his employer in contravention of this section. (5A)This section does not apply where— (a) the worker is an employee; and (b) the detriment in question amounts to dismissal. 175.It was not disputed that the claimant was taking part in the activities of an independent trade union at the time of the alleged misconduct. 176.The crucial issue was whether the claimant was taking part in activities at an “appropriate time” “Appropriate time” 177.When the claimant wrote the 12 May email he was specifically rostered to work between 12 and 2pm on what was known as inbox work (770) for the respondent, and that was never challenged. 178.Given the drafting of the 12 May e-mail was not outside the claimant’s working hours he must then rely upon subparagraph section 146 (2) (b) 179.So the question is what the claimant did ; was it in accordance with arrangements agreed with or consent given by the respondent? 180.The tribunal must answer the question objectively. 181.The tribunal reminded itself that there was no necessity for express consent, it could be inferred from custom and practice although silence to a request did not imply consent, see Marley Tile Co Ltd -v- Shaw [1980] ICR 72. 182.The respondent’s policy, ( the facility policy ) (208 to 221) provided as follows: – “facility time… provided for employee relations work in HMRC must not be used for the planning or conduct of any industrial action…” “TU representatives are responsible for making a request for time off as facility time in good time and before the time off is taken. There may be times when urgent TU support is required for example, a safety representative responding to an incident. TU representatives should still speak to their manager…” 183.Thus according to the facility policy, when the claimant, as a trade union representative, needed facility time to, for example, attend meetings or prepare for a disciplinary case he had to contact Mrs Peake. 184.It was not suggested the trade union activity undertaken on 12 May by the claimant was urgent as defined in the facility policy. 185.An evidential dispute existed as to whether, in practice, the claimant was required to request time off to carry out activities on behalf of the PCS. 186.The tribunal found that Mrs Peake’s witness statement set out the general position ( but see below) as regards facility time. It found her to be a more compelling witness than the claimant. She said “I would make the decision whether to allow Gordon [the claimant] to use facilities time after discussion with him”. She went on to accept the claimant normally spoke to her although occasionally it might be by means of an email exchange. 187.The tribunal found the claimant, on occasions received an email from a union member and responded to it without speaking to Mrs Peake to request facility time Mrs Peake’s accepted if such a request ( ie. in respect of an e-mail taking about 2 minutes) was raised with her she would have granted permission provided the email was short and did not impact upon the claimant’s day-to-day work for the respondent. Thus she was not overtly concerned if no request was made to deal with a simple e-mail relevant to the claimant’s trade union activities that required very little time . 188.Ms Hogben put the claimant’s case on the basis that by custom and practice there was an agreed arrangement that the claimant did not need consent. The claimant’s case was that there was a verbal agreement between himself and Mrs Peake that he had freedom to take facility time whenever he wanted without needing to obtain permission 189.The tribunal did not accept that assertion for the following reasons.• Firstly in cross examination the claimant’s position changed on this important point. He conceded that if he wanted to take a “significant chunk” of facility time he would need to speak to Mrs Peake beforehand. Almost one and a half hours, the time the claimant spent on 12 May email, in the tribunal’s judgement was clearly a “significant chunk”. The claimant therefore could not reasonably have thought that on 12 May he could spend such time on union activities without the consent of Mrs Peake.• Secondly the claimant conceded the description of the arrangement given by Mrs Peake, namely if he needed time to deal with a simple e-mail taking a couple of minutes she did not need to be asked for consent was a fair description of their arrangement . On 12 May the claimant engaged in a wholly different activity . He was not answering an e-mail, receipt of the timing of which he had no control over, but consciously used 1.5 hours of working time to engage in trade union activities. This was a wholly different scenario from which Ms Peake had impliedly permitted the claimant to engage in historically. In the circumstances consent could not reasonably be implied. He therefore knew he did not have implied consent to spent almost 1.5 hours on trade union activities when he was rostered to work• Thirdly at a preliminary hearing 26 September 2024 the claimant was ordered to give further information about what he said were the “arrangements” in respect of the facility time in very specific terms ( 57). His response did not set out any of the allegations he now made in his written statement or oral evidence as to having permission from Mrs Peake to take facility time whenever he chose. That damaged the claimant’s credibility of this key issue.• Fourthly Ms Peake’s evidence was consistent both with her statement (paragraph 16) and the contemporaneous documentation. Ms Hogben focused on a comment made by Mrs Peake to Mrs Cameron during the investigation, when she said , when discussing facility time and the claimant ,“he does get facilities time and he keeps me and my manager informed of meetings that he has and provides me with his form B on a regular basis” (441). Whilst it is true that Ms Peake did not specifically use the word “agreement” or “consent”, looked at in context it is clear there had to be discussions with her to obtain agreement when the claimant wanted facility time and the time off was recorded. This also directly contradicted the claimant’s central plank that he could take facility time whenever he wanted. With respect to Ms Hogben’s submission that requiring the claimant to obtain consent would be both “onerous and unworkable” that is unsustainable. It was not. Consent had to be required so Mrs Peake knew where the claimant was for work force planning and so it could be accurately recorded on form B so the respondent was aware of whether the claimant had exceeded his annual facility time allowance. There would be no need for such a system if the claimant could simply take facility time when he wanted without asking for permission.• Fifthly the tribunal considered it was improbable that Mrs Peake would depart significantly from the facility time policy given that would expose her to possible managerial action. She had no motivation to significantly depart from that policy. 190.The claimant has not established what he did was in accordance with arrangements agreed with or consent given by the respondent. 191.That in itself is sufficient to dispose of this aspect of the claimant’s claim. 192.However if the tribunal was wrong on that point it then went on to consider whether the detriments were for the sole or main purpose of penalising the claimant for taking part in union activities. “Sole or main purpose” 193.Determining what was the sole or main purpose the tribunal has to look what was in the mind of the decision-maker, see University College London -v- Brown [2001] IRLR 200 . In other words the question is subjective. 194.Mrs Peake took the decision, albeit relying heavily on HR advice to initiate disciplinary proceedings. Her evidence as to why she did so was clear “the reason for my referral was that allegations of bullying and harassment had been made against it. The department had to get to the bottom of it” 195.Whilst ultimately it was found there was no bullying or harassment the evidence of Mrs Peake is consistent with the contemporaneous document and demonstrated to the tribunal why she acted as she did. It was not the trade union activities per se but what she perceived to be potential misconduct. 196.Similarly it was Miss Isaac who required the claimant to attend a disciplinary meeting. The motivation behind the decision was the investigative report from Ms Cameron which recommended disciplinary action due to the alleged multiple breach by the claimant of the respondent’s procedures. 197.While his activities may well have been those of an independent trade union, the action taken by the respondent was taken not for the sole or main purpose of penalising him for taking part in union activities but for so doing outside the appropriate time, in breach of the respondent’s policies and procedures and the use of the respondent’s internal systems for that purpose that was strictly prohibited. The tribunal found what the parties referred to as the separability principle described in Martin -v- Devonshire’s Solicitors (2011] ICR 352 was applicable. 198.The claimant could have sent the emails of 12 May in his own time. 199.He could have sent them on his own computer. To put it in common parlance, the principal mischief was the way the claimant went about doing what he did. 200.Thus even if the tribunal was wrong on the “appropriate time” point it would have found against him, in any event because the sole or main purpose of the detrimental treatment, was not the penalising him for taking part in the activities of an independent trade union. Section 152 TULCRA 201.Ms Hogben expressly put her case under section 152(1)(b) (1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—….. (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, (2) In subsection(1) “an appropriate time” means— (a) a time outside the employee’s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union (as the case may be) make use of trade union services and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work. (2A) In this section— (a) “trade union services” means services made available to the employee by an independent trade union by virtue of his membership of the union ….” 202.Given the tribunal’s finding in respect of whether the claimant undertook activities at “an appropriate time” his claim must fail. 203.However tribunal then went on to consider, in the alternative, whether the reason or the principal reason for the claimant’s dismissal was that he had taken part in the activities of independent trade union at an appropriate time. The tribunal reminded itself of the wise words of Phillips P (as he then was) when examining the predecessor to section 152 (1) (b) in Lyon and anor v St James Press Ltd 1976 ICR 413, EAT 204.He said: –‘the special protection afforded by [what is now S.152(1)(b)]… must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal’. 205.The key issue likely to occupy the tribunal was according to Phillips J whether it could fairly be said that it is not the trade union activities themselves that were the reason for the dismissal but some feature of them which was genuinely separable ( anticipating by a number of years the decision in Martin). 206.Miss Isaac set out very clear, cogent and lengthy reasons why she chose to dismiss the claimant, none of which have anything to do with the claimant’s participation in union activities. Whilst the tribunal is not so naïve to assume that such an admission would be made, the tribunal found Miss Isaac to be a credible and truthful witness and her oral evidence was supported by her contemporaneous, lengthy and reasoned dismissal letter ( 649 to 666). 207.The tribunal is satisfied that there was a genuinely separable issue. It is the way and the timing the claimant undertook the activities of an independent trade union and not those activities themselves that lead to his dismissal. It was the use of the respondent’s systems expressly contrary to its policies, the wording used and the monitoring of staff that was separate and distinct from the claimant carrying out union activities. Unfair dismissal. 208.In reaching its conclusion on the issue of what is often classified as “ordinary” unfair dismissal the tribunal applied the following statutory provisions and law. Section 98 (1), 98 (2) and 98 (4) of the ERA 96 provides as follows: – “98 (1) – in determining for the purposes of this Part 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 either it is 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 helped. 98 (2) – a reason falls within this subsection if it……. (b) relates to the conduct of the employee. 98 (4) –….. 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 reason shown by the employer): (a) depends on the whether in the circumstances (including the size and the 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.” 209.In Abernethy – v – Mott, Hay and Anderson 1974 IRLR213 the Court of Appeal held that a reason for dismissal was a set of facts known to the employer or beliefs held by it which would cause it to dismiss the employee. 210.The tribunal had regard to the guidance given in British Home Stores Ltd -vBurchall 1978 IRLR 379. 211.The approach to fairness and procedure to be applied is the standard of a reasonable employer at all three Burchall stages:- Sainsbury’s Supermarket-vHitt 2002 EWCA CIV 1588. 212.The tribunal also applied the guidance given in Iceland Frozen Foods Ltd -v- James 1992 IRLR 439: – “The authorities establish that in law the correct approach for an employment Tribunal to adopt in answering the question posed by section 98 (4) is as follows…… (1) the starting point should always be the words of section 98 (4) themselves. (2) in applying this section an Employment Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Employment Tribunal) consider the dismissal to be fair. (3) in judging the reasonableness of the employer’s conduct an Employment Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. (4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take on you, another quite reasonably take another. (5) the approach of the Employment Tribunal, as an industrial jury, is to determine whether the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses in which a reasonable employer might have adopted. If a dismissal falls within the band the dismissal is fair….. If the dismissal falls outside the band it is unfair.” Potentially fair reason for dismissal? 213.There was no dispute that the reason the respondent dismissed the claimant was for alleged misconduct. 214.The respondent has therefore discharged the relatively low burden of showing that the reason for the claimant’s dismissal The tribunal was so satisfied it was conduct as that was wholly consistent with the disciplinary invitation letter, the policies the respondent applied, the contents of the investigative report, the determination of Miss Isaacs and the outcome of the claimant’s appeal. Reasonable grounds for that belief 215.The respondent relied upon two reasons to justify dismissal namely:-• using the respondent’s MS Teams without a legitimate business need to check on the status of employees who had not taken part in industrial action but were within scope• using the respondents MS Teams to promote industrial action by the email of 12 May, 67 times. 216.The respondent had a reasonable belief in respect of the first allegation The claimant admitted that he had accessed MS Teams to check whether his colleagues were at work (643).That was not, in the particular circumstances, a legitimate business need. He wanted to know if the non-striking employees in scope were at work or had been during the IA. 217.There was also documentation available (520) and before the respondent to show that the claimant recorded the attendance status of employees who were within scope. Again the claimant had no legitimate business need to do so. 218.Turning to the second limb Ms Hogben contended that there was no promotion let alone a reasonable belief in promotion. 219.The Oxford English dictionary lists a total of 17 definitions of the word “promotion” 220.The tribunal concluded that promotion could be fairly defined as the advertising or seeking to make something more popular. 221.The tribunal found Mr Halliday’s analogy of a person who booked a pop group and then put up posters advertising the concert and circulated details of how to obtain tickets on social media as constituting promotion even though, of course, the recipients could choose to buy or not buy tickets was a helpful analogy. It was their choice if they bought tickets but there was still promotion. 222.Ms Hogben submitted that the fact the claimant said in his email of 12 May “Obviously it’s an individual choice whether or not to take industrial action” showed he was not promoting industrial action. 223.The tribunal did not agree. The email was addressed only to non-strikers. The email use the word “reported” which could reasonably make the recipient feel they done something wrong. The email referred to the availability of strike pay. 224.The respondent had before it the claimant’s email, just before his email to none strikers, (I say 87% decent but I’d love to know why the 54 didn’t take part”). It knew the claimant had used the respondent systems to find out who was working. It was aware of the claimant’s email exchange with Mr Wilson (“not fancy some paid time off”) 225.Looked at in the round on the basis of the available evidence the respondent’s conclusion that this was promotion was a reasonable conclusion a reasonable employer could reach. Was there a reasonable investigation 226.The claimant was provided with Ms Cameron’s very detailed investigation running to approximately 430 pages. 227.The report was clear and comprehensive. The claimant was given an opportunity to put forward his account. 228.There was no suggestion that Ms Cameron failed to interview relevant witnesses or did not seek out documents which the claimant indicated during the process were relevant. 229.The investigation was reasonable in all the circumstances. Was dismissal within the band of responses of a reasonable employer? 230.The tribunal is satisfied that the respondent reasonably believed that the claimant’s email of 12 May were designed to promote industrial action and that was a breach of its own policies in the use of its systems. 231.The indicative penalty under the respondent’s policies, which the tribunal must have regard, was at the proven misconduct of the claimant could result in dismissal for gross misconduct. 232.Miss Isaac noted the aggravating and mitigating factors in coming to her conclusion. 233.She was entitled to conclude that the damage to the employment relationship went to the root of the contract of employment. 234.Miss Isaac did not fall into the error (see Brito-Babapulle -v- Ealing Hospitals NHS Trust [2013] IRLR 854.) of assuming that simply because the indicative penalty was gross misconduct that she had to dismiss. 235.She considered options short of dismissal. She specifically looked at a final written warning. Whilst Ms Hogben stated she should have considered dismissal and reinstatement at a lower grade with a final written warning. Miss Isaacs was aware of it being a possible option as evidenced by the contemporaneous documents. 236.Such a penalty under the respondent’s disciplinary policy would be exceptional and there were no exceptional circumstances raised with her and it was never an option that the claimant or his trade union official urged adoption of ( and for completeness neither was it raised in the claimant’s lengthy grounds of appeal). 237.Whilst Miss Isaac did accept that she was concerned as to the claimant’s failure to accept any wrongdoing and that he appeared to dismiss the relevance of the respondent’s policies on the basis no one read them ( paragraph 17 of her statement) the tribunal was not satisfied that this was a case that fell into the category referred to in Hewston -v- Ofsted [2025] EWCA Civ 250.The lack of contrition by the claimant was not used by the respondent to bump up the penalty to justify dismissal. It was part of the overall fact-finding in a case where the indicative penalty was dismissal. 238.Neither was it in error for Miss Isaac to take into account in her judgement the fact that the claimant had been less than frank and honest with her. On the evidence that was a conclusion she could reasonably come to and the factor an employer could reasonably take into account when considering a penalty. Was the procedure followed fair, taking into account the ACAS Code of Practice on Disciplinary and Grievance Procedures; General considerations 239.The claimant was aware that the allegations against him were serious. 240.He was provided with the terms of reference for Ms Cameron’s investigation. 241.He was provided well before the disciplinary hearing with Ms Cameron’s report and the appendices. 242.The claimant had an adequate time to prepare for the disciplinary hearing and was represented by his trade union official. 243.The notes of the meetings show that the claimant and his trade union official were able to participate fully. 244.The letter from Miss Isaacs set out her findings in detail. The fact that she found one of the allegations not to be proven was a factor that reassured the tribunal that she approach the proceedings with a genuinely open mind. 245.The claimant was fully aware of the reasons as to why he had been dismissed and was able to prepare comprehensive grounds of appeal. 246.The claimant was given an express right of appeal. The appeal was handled by a more senior member of the respondent staff. Written reasons were given as to why his appeal was rejected. Specific considerations 247.The tribunal then moved to consider the specific allegations of unfairness that were raised in the list of issues. Inconsistency allegations 248.Ms Hogben relied upon the change between Mrs Peakes review letter, the terms of reference and the allegations finally put to the claimant at the disciplinary hearing. 249.Ms Hogben is right that the respondent had a concern that the claimant had used WFM for checking whether employees in scope were working during the IA 250.Initially the position was not clear to the respondent. 251.When the claimant was invited to his disciplinary hearing the phraseology used by the respondent was “On 12/05/2023, used an HMRC system (MS Teams and/or WFM) without a legitimate business….” 252.The respondent could and should, at an earlier stage have made it clear there were no longer pursuing the WFM point, but the process was still fair as before the disciplinary hearing the claimant knew the allegation related to using one of the respondent’s systems and he knew which one he had used on 12 May .The allegation was worded widely enough to cover MS Teams. The claimant had adequate time to prepare, some seven weeks, and to make submissions on the allegation. 253.At no stage was it ever suggested either by the claimant or his trade union representative that they did not understand the case that had to be met. Fabricated evidence 254.This allegation related to two separate issues:-• the disputed footer• the bullying allegation. 255.The footer point was a reference to the footer that two recipients said they had on their emails of 12 May. 256.Despite Ms Hogben’s ’s attractive argument there was no unfairness to the claimant. 257.There was no unfairness because neither Miss Isaac nor Ms Forster took the same into account in their deliberations and Miss Isaac’s made it clear she had expressly discounted the issue before reaching her decision in the contemporaneous documentation. 258.Miss Isaacs went further. She directed an investigation on this specific point. (663). 259.Similarly there was no unfairness in respect of the bullying allegation. Ms McIntosh had raised a concern, although it is right to say she referred to harassment and not bullying. The word bullying is often used loosely in the same manner as harassment and often the words are used interchangeably . It was not unreasonable to consider that a recipient of the email of 12 May could have felt bullied or harassed. The respondent’s own policy defines bullying as including intimidatory behaviour. 260.A reasonable employer would have investigated. In the tribunal’s judgement the important fact was the allegation was not proven and therefore did not form part of the reason for the claimant’s dismissal. There was no unfairness to the claimant. Pressure from senior management 261.There was no cogent evidence placed before the tribunal to show any pressure was placed on either Miss Isaacs or Ms Forster in respect of determining the disciplinary and appeal. 262.At its highest, the claimant’s case was that there was email evidence senior management were aware and concerned in respect of events. If this had been a simple internal disciplinary issue the tribunal might have understood that concern. However this was not an ordinary matter. It arose during strike action which was significantly impacting upon the respondent’s ability to meet customer demand and involved a trade union official .It was a case of some sensitivity which occurred in Ms Skeldon’s area of responsibility and had been reported to her by Ms Mc Intosh. 263.There is no direct or circumstantial evidence which even began to show that the decision to dismiss the claimant was manipulated or that Miss Isaacs and Ms Forster did not believe the claimant should have been dismissed. They were both credible witnesses when the allegation was fairly and squarely put to them. The tribunal is satisfied they exercised their own independent judgement. 264.During the course of her closing submissions Ms Hogben referred to a number of further matters which she said rendered the dismissal unfair. Almost all of them have been addressed in other sections of this judgement but the tribunal should deal with the remaining points. Decisions in the disciplinary process were not taken impartially by independent managers 265.At the commencement of the disciplinary process Ms Hogben criticised the fact that Mrs Peake gave no consideration to approaching matters on informal, as opposed to a formal basis. 266.Ms Hogben contended the allegations should have been dealt with informally. 267.As the e-mail correspondence showed that was given consideration ( 435 to 436) but both ER and EAS advised on formal proceedings having changed their initial view, having reflected on the available information, that it could be dealt with informally, ( 437). The tribunal is satisfied that the allegations were serious enough to merit consideration formally rather than informally. A reasonable employer acting reasonably could so classify the allegations. 268.Mrs Peake followed the ER and EAS advice . The tribunal considered that would be exactly what a relatively junior manager would do in a large organisation. The matter was given consideration. It was Mrs Peakes decision to follow a formal process relying on the advice she had been given. Prejudgement 269.Ms Hogben was critical of an internal email involving HR dated 12 May 2023 in which there was a discussion as to the claimant’s conduct and it was said “… We believe the system has been accessed inappropriately to identify which HMRC colleagues to contact and apply indirect pressure under the pretence of colleague ignorance…”. It has to be read in the context of HR were considering whether the matter should be formal or informal. 270.The tribunal did not find that amounted to some form of prejudgement of the claimant. 271.In addition none of those who were involved in the email exchange quoted above were decision-makers in the subsequent disciplinary proceedings. Policies and the definition. 272.Ms Hogben was critical that the claimant was not specifically trained on all the respondent’s policies. The tribunal has already dealt with this matter in its findings of fact. The claimant had to know of the AUP because it was part of his mandatory training and the tribunal found he would have known of the facility time and disciplinary policy given his position. 273.She also contended that the policies were deficient as there was no definition of what was meant by the word “promotion”. There is no definition but the claimant should have known that what he was doing was promoting the activities of an independent trade union. He had been warned by Ms Farmer not to do so. If he had any concerns as to his email of 12 May he could have discussed it with her or perhaps more importantly discussed it with his manager. 274.The tribunal did not find that the above amounted to any procedural error on the part of the respondent. Failure to forthwith suspend the claimant 275.The tribunal did not accept the submission that a failure to suspend the claimant forthwith, in itself, meant that any subsequent dismissal for gross misconduct was either substantively or procedurally unfair. 276.Although suspension is frequently described as a neutral act it rarely is for the recipient. It also means that a productive employee has to be paid for doing nothing when they may be wholly innocent of the allegations raised. The respondent decided, reasonably, that given the claimant enjoyed a good working relationship with Mrs Peake, and no doubt could also monitor its internal systems, that suspension was not necessary. That was a conclusion a reasonable employer was entitled to reach. Conclusion re ordinary unfair dismissal 277.The tribunal are satisfied the respondent has established a potentially fair reason for dismissal namely conduct and the tribunal then looked at the section 98(4) question and determined that the respondent acted fairly in all the circumstances in treating that reason as a sufficient reason for dismissal. Dismissal was within the band of responses of a reasonable employer. 278.In the original list of issues the tribunal agreed with the parties it would look at both contribution and Polkey. Given the tribunal’s primary conclusion ,and having regard to the demands on tribunal time, the tribunal has only addressed the issue contributory conduct. Contributory conduct. 279.The tribunal applied the following legal principles. 280.Section 123 (6) ERA 96 states that “[W] here the Tribunal finds that the dismissal was to any extent caused all contributed to by any action of the complainant, it shall reduce the….. compensatory award by such proportion as it considers just and equitable having regard to that finding.” 281.A reduction for contributory conduct is appropriate according to the Court of Appeal in Nelson-v- BBC (2) 1980 ICR 110 when three factors are satisfied namely: –• The relevant action must be culpable or blameworthy• It must have caused or contributed to the dismissal, and• It must be just and equitable to reduce the award by proportion specified 282.For a deduction to be made a causal link must exist between the employee’s conduct and the dismissal. In other words, the conduct must have taken place before the dismissal; the employer must have been aware of the conduct; and the employer must then have dismissed the employee at least partly in consequence of conduct. 283.A finding of contributory fault does not require that the action of the employee was the sole or principal or operative course of the dismissal: – Polentarutti -vAutokraft Limited 1991 IRLR 457. 284.In the tribunal’s judgement the actions of the claimant were culpable or blameworthy as they were done to promote the activities of an independent trade union at a time that was not permitted by the respondent utilising the respondent’s systems which forbad such activity The tribunal found as did the respondent this was not simple naivety 285.It was a deliberate and planned course of action. 286.The claimant knew it was the “golden rule” not to use the respondent’s systems for anything other than a legitimate business purpose or to promote industrial action. Despite this he did use the systems for a none legitimate business purpose. 287.In the light of the above Ms Hogben’s submission that the claimant’s behaviour did not cause or contribute to the claimant’s dismissal cannot be accepted. It clearly caused or contributed to the claimant’s dismissal. The respondent had no reason to take any action against the claimant, absent his activities on 12 May. 288.He only brought matters upon his own shoulders and thus it would be just and equitable, if the tribunal is wrong in its primary findings, to find that he contributed as to 100% as to his dismissal. He was wholly to blame. Conclusion 289.The claimant’s complaints are not well founded and are dismissed.