Mr F Hombarume v Tees Esk and Wear Valleys NHS Foundation Trust: 2501897/2019
EMPLOYMENT TRIBUNALS
Case No 2501897/2019
Between
Mr F HombarumeClaimantTees Esk and Wear Valleys NHS Foundation TrustRespondent
Before
Employment Judge AspdenMr W Ekinu for claimantMs C Millns for respondentDate 21 September 2021
JUDGMENT
The unanimous decision of the Tribunal is that none of the claimant’s claims are well founded. The claims are dismissed.
REASONS
[1]The claimant was employed as a healthcare assistant by the respondent until he was dismissed by the respondent without notice on 22 January 2019. The claimant is black and of Zimbabwean nationality/national origins.[2]The claimant brings claims of unfair dismissal, wrongful dismissal and direct race discrimination.[3]The claimant’s claims of race discrimination were discussed at a case management hearing in August 2019. It was ascertained that the claimant claims that he was directly discriminated against because of his colour and/or his nationality or national 1 of 28 origins. The alleged acts that the claimant contends constituted less favourable treatment because of his race are as follows: 3.1. Louise Cate, Niloufar Jenaban and Sarah Appleton made false allegations of inappropriate behaviour by the claimant (which led to disciplinary action). 3.2. Louise Palmer provided evidence in support of those allegations. 3.3. Alison MacIntyre pressed the individuals named above to make false allegations and drove through disciplinary proceedings to dismissal. 3.4. Paul Haytack produced a report recommending disciplinary action. 3.5. Sean Mayo dismissed the claimant. 3.6. Helen Cowper, an HR manager, influenced Mr Mayo’s decision to dismiss the claimant. 3.7. Elizabeth Moody rejected the claimant’s appeal against dismissal.[4]At a case management hearing on 23 March 2020 the claimant was permitted to amend his claim to add a further complaint of direct race discrimination against the respondent, alleging that Mr Malcolm treated the claimant less favourably because of because of his colour and/or his nationality or national origins by colluding with some or all of the individuals named in the allegations set out above to facilitate (or effect, as it was put in this hearing) the claimant’s dismissal. Mr Malcolm was the claimant’s trade union representative. The claimant said at the case management hearing that the allegation was not in respect of anything done or not done by Mr Malcolm in his capacity as the claimant’s trade union representative.[5]At a case management hearing on 12 October 2020 the claimant was permitted to further amend his claim to add a complaint that the dismissal and alleged detrimental treatment referred to above constituted direct sex discrimination.[6]It is not in dispute that Mr Mayo dismissed the claimant or that Mrs Moody rejected the claimant’s appeal against dismissal. However, the respondent denies the following: that anyone made false allegations against the claimant; that Ms MacIntyre pressed anyone to make false allegations and drove through disciplinary proceedings to dismissal; that Mr Haytack, produced a report recommending disciplinary action; that Mrs Cowper influenced Mr Mayo’s decision to dismiss the claimant; and that Mr Malcolm colluded with anyone to facilitate the claimant’s dismissal.[7]In determining the claimant’s complaints of discrimination, the issues for the Tribunal to decide are as follows: 7.1. Did the respondent subject the claimant to detriment(s) as alleged? 7.2. By dismissing the claimant, refusing his appeal and/or subjecting him to other detriment, did the respondent treat the claimant less favourably than it would have treated others in circumstances that are not materially different because of race and/or sex?[8]If some, but not all, of the alleged acts of discrimination are found to have occurred, it would also be necessary to determine whether the claim was brought in time as certain alleged detriments appear to have occurred more than three months before 2 of 28 the date on which the Claimant submitted his claim to the Employment Tribunal (extended, as necessary, by ACAS conciliation).[9]In determining whether the complaint of unfair dismissal succeeds, the issues for the Tribunal to decide are as follows: 9.1. whether the respondent has shown a potentially fair reason for dismissing the claimant and, if so, 9.2. whether the dismissal was fair or unfair applying the test in section 98(4) of the Employment Rights Act 1996.[10]On the first of those issues, the respondent’s case is that it dismissed the claimant for ‘inappropriate behaviour and/or harassment of a sexual nature towards female colleagues’, which was a reason related to conduct and, therefore, one of the potentially fair reasons for dismissal within section 98(2) of the 1996 Act. At the outset of the hearing we asked the respondent to clarify what were the beliefs held that caused the respondent to dismiss the claimant. The respondent’s response was as follows: ‘Mr Mayo dismissed the Claimant for gross misconduct, specifically sexual harassment towards female staff. In coming to this conclusion, Mr Mayo believed that the following matters occurred and that such acts constituted sexual harassment by the Claimant of the female members of staff mentioned below.(1) Throughout the nightshifts of 27 July, 28 July and 29 July 2018 the Claimant said to Mrs Appleton:• I was dreaming about you last night and we were in bed together• I need a woman Sara, are you going to help me out?• I like you Sara, why don’t you like me, you would like to be with me.• I need to have a woman and you are going to oblige me.• That she should go home with him to his bed• That him and Sara and would have cute babies(2) During the course of three nightshifts from 3 August - 5 August 2018 the Claimant said to Ms Palmer that he wanted to have a chocolate baby with her.(3) On or around the night shifts of 3 – 5 August 2018 whilst the Claimant was in the kitchen with Ms Palmer:• The Claimant said to Ms Palmer “Cheese makes me rock hard for you”.• Upon Angela Louise Palmer asking what the Claimant meant he replied, “cheese makes my dick rock hard for you in the morning.”(4) On an unspecified date in 2016, the Claimant said to Ms Palmer “take your break 4-5 so that we can both round the back together.”[11]The claimant’s claim of wrongful dismissal is a complaint that the respondent breached the claimant’s contract of employment by dismissing him without giving due notice. It was the respondent’s case that the claimant was guilty of gross misconduct and that it was entitled to terminate his employment without notice. The respondent confirmed at the outset of the hearing that it relies on the alleged conduct 3 of 28 referred to at (1) to (3) of the previous paragraph as constituting gross misconduct which entitled the respondent to dismiss the claimant without notice. The issues for the Tribunal to decide to determine whether the claim succeeds are as follows: 11.1. whether the alleged conduct was committed by the Claimant (that being a matter for the respondent to prove on the balance of probabilities); and 11.2. whether such conduct, either individually or collectively, was serious enough to entitle the respondent to dismiss the claimant without notice. Legal framework Discrimination
Legal framework
[12]It is unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to other detriment: section 39(2) of the Equality Act 2010. Section 13 of the Equality Act 2010 provides that it is direct discrimination for an employer to treat an employee less favourably because of race or because of sex than it treats or would treat others in circumstances that are not materially different. In this context, someone’s ‘race’ includes their colour, nationality or national origins.[13]The burden of proof in relation to allegations of discrimination is dealt with in section 136 of the 2010 Act, which sets out a two-stage process. 13.1. Firstly, the Tribunal must consider whether there are facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination against the claimant. If the Tribunal could not reach such a conclusion on the facts as found, the claim must fail. 13.2. Where the Tribunal could conclude that the respondent has committed an unlawful act of discrimination against the claimant, it is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed, that act.[14]The Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] IRLR 258 made the following points in relation to the application of the burden of proof: 14.1. ‘It is important to bear in mind in deciding whether the claimant has proved facts from which the Tribunal could conclude that there has been discrimination that it is unusual to find direct evidence of … discrimination: few employers would be prepared to admit such discrimination, even to themselves and in some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in.’ 14.2. In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. 14.3. It is important to note the word ‘could’ in the legislation. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. 4 of 28 14.4. In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.[15]Simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof: Bahl v Law Society [2003] IRLR 640, EAT, approved by the Court of Appeal at [2004] IRLR 799.[16]Where the claimant has proved facts from which the Tribunal could conclude that the respondent has treated the claimant less favourably because of race or sex, it is then for the respondent to prove that it did not commit that act or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic (ie race or sex). Unfair dismissal[17]An employee has the right, under section 94 of the Employment Rights Act 1996, not to be unfairly dismissed (subject to certain qualifications and conditions set out in the Act). Reason for dismissal[18]When a complaint of unfair dismissal is made, it is for the employer to show 18.1. the reason (or, if more than one, the principal reason) for the dismissal, and 18.2. that it is either a reason falling within section 98(2) of the 1996 Act or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held: ERA section 98(1).[19]The reference to the reason, in section 98(1)(a), is not a reference to the category within section 98(2) into which the reason might fall. It is a reference to the set of facts known to the employer, or beliefs held by the employer, which cause it to dismiss the employee: Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA. In Abernethy the Court of Appeal noted that: ''If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason'.[20]Having identified the reason (or, if more than one, the principal reason) for the dismissal, it is then necessary to determine whether that reason falls within subsection (2) or is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. In this case the respondent contends that the reason for the claimant’s dismissal was a reason relating to the conduct of the claimant, which is a potentially fair reason for dismissal within section 98(2)(b).[21]Where an employer alleges that its reason for dismissing the claimant was related to his conduct the employer most show: 5 of 28 21.1. that, at the time of dismissal, it genuinely believed the claimant had committed the conduct in question; and 21.2. that this was the reason for dismissing the claimant.[22]The test is not whether the Tribunal believes the claimant committed the conduct in question but whether the employer believed he had done so. Fairness[23]If the respondent shows that it dismissed the claimant for a potentially fair reason the Tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason applying the test in section 98(4) of the Employment Rights Act 1996.[24]Section 98(4) of ERA 1996 provides that: ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 24.1. 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 24.2. shall be determined in accordance with equity and the substantial merits of the case.’[25]In assessing reasonableness, the Tribunal must not substitute its view for that of the employer: the test is an objective one and the Tribunal must not fall into the substitution mindset warned against by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, [2009] IRLR 563. The objective approach requires the Tribunal to decide whether the employer's actions fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439). This ‘range of reasonable responses’ test applies just as much to the procedure by which the decision to dismiss is reached as it does to the decision itself (Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23).[26]The Employment Appeal Tribunal (EAT) set out guidelines as to how the reasonableness test should be applied to cases of alleged misconduct in the case of British Home Stores Ltd v Burchell [1980] ICR 303. The EAT stated there that what the Tribunal should decide is whether the employer had reasonable grounds for believing the claimant had committed the misconduct alleged and had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.[27]The concept of a reasonable investigation can encompass a number of aspects, including: making proper enquiries to determine the facts; informing the employee of the basis of the problem; giving the employee an opportunity to make representations on allegations made against them and put their case in response; and allowing a right of appeal. The Tribunal must take into account relevant provisions of the In ACAS Code of Practice on Disciplinary and Grievance Procedures when assessing the reasonableness of a dismissal on the grounds of 6 of 28 conduct (section 207(3) of the Trade Union and Labour Relations (Consolidation) Act 1992).[28]Even if procedural safeguards are not strictly observed, the dismissal may be fair. This will be the case where the specific procedural defect is not intrinsically unfair and the procedures overall are fair (Fuller v Lloyd's Bank [1991] IRLR 336, EAT). Furthermore, defects in the initial disciplinary hearing may be remedied on appeal if, in all the circumstances, the later stages of a procedure are sufficient to cure any earlier unfairness (Taylor v OCS Group Ltd [2006] IRLR 613). The Court of Appeal noted that the Tribunal must ‘determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the openmindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.’[29]In applying section 98(4) the Tribunal must also ask itself whether dismissal was a fair sanction for the employer to apply in the circumstances ie one falling within the range of reasonable responses open to a reasonable employer. As noted above, it is not for the Tribunal to substitute its view for that of the employer. Wrongful dismissal[30]A dismissal without notice where summary dismissal is not justifiable will be a wrongful dismissal and give rise to an action for breach of contract.[31]An employer is entitled to dismiss an employee without notice for gross misconduct. In this context, ‘gross misconduct’ means conduct that constitutes a repudiatory breach of contract.[32]The question here is not whether the respondent believed the claimant to be guilty of gross misconduct. It is for the Tribunal itself to determine(a) whether the claimant actually committed the conduct alleged to constitute the breach; and(b) if so, whether that conduct did constitute a repudiatory breach of contract.[33]The concept of gross misconduct was considered in the case of Sandwell & West Birmingham Hospitals NHS Trust v Westwood, where the EAT held that to amount to gross misconduct the employee’s conduct must either be a deliberate and wilful contradiction of contractual terms or be conduct amounting to a very considerable degree of negligence. In Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 1168 (at para 61) Etherton LJ said the legal test for whether there has been a repudiatory breach of contract is: ‘…whether, looking at all the circumstances objectively, that is from the perspective of the reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.’ Evidence and facts[34]The claimant gave evidence. We also heard unchallenged evidence from his partner, Ms Nenguke. For the respondent we heard evidence from the following witnesses: 7 of 28 34.1. Mr Malcolm, who is employed by the respondent as a community psychiatric nurse and who is also the Unison branch secretary at the Trust; 34.2. Mrs McIntyre, who was a Modern Matron for the Trust at the time of the events with which we are concerned; 34.3. Mrs Appleton, a healthcare assistant employed by the Trust; 34.4. Miss Palmer, another healthcare assistant employed by the Trust; 34.5. Miss Jenaban, a staff nurse for the Trust; 34.6. Miss Cate, another staff nurse with the Trust; 34.7. Mr Haytack, who carried out an investigation into the allegations that led to the claimant’s dismissal; 34.8. Mr Mayo, who conducted a disciplinary hearing into those allegations; 34.9. Mrs Cowper, an HR manager with the Trust who was involved in the disciplinary hearing; and 34.10. Mrs Moody, the respondent’s Director of Nursing and Governance, who heard the claimant’s appeal against his dismissal.[35]In addition, we took into account the documents to which we were referred in a bundle of documents prepared for this hearing.[36]Important elements of this case were dependent on evidence based on people’s recollection of events that happened some considerable time ago. In assessing that evidence we bear in mind the guidance given in the case of Gestmin SGPS -vCredit Suisse (UK) Ltd [2013] EWHC 3560. In that case Mr Justice Leggatt observed that is well established, through a century of psychological research, that human memories are fallible. They are not always a perfectly accurate record of what happened, no matter how strongly somebody may think they remember something clearly. Most of us are not aware of the extent to which our own and other people’s memories are unreliable, and believe our memories to be more faithful than they are. In the Gestmin case, Mr Justice Leggatt described how memories are fluid and changeable: they are constantly re-written. Furthermore, external information can intrude into a witness’ memory as can their own thoughts and beliefs. This means that people can sometimes recall things as memories which did not actually happen at all. In addition, the process of going through Tribunal proceedings itself can create biases in memories. Witnesses may have a stake in a particular version of events, especially parties or those with ties of loyalty to parties. It was said in that case: ‘Above all it is important to avoid the fallacy of supposing that because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’ In light of those matters, inferences drawn from the documentary evidence and known or probable facts tend to be a more reliable guide to what happened than witnesses’ recollections as to what was said in conversations and meetings. It is worth observing from the outset that simply because we do not accept one or other witness’ version of events in relation to a particular issue does not necessarily mean we considered that witness to be dishonest.[37]The Trust’s disciplinary procedure that was in place at the time of the claimant’s dismissal gave examples of things that might be considered as misconduct and things that might be considered as gross misconduct. The list of examples of misconduct included bullying and harassment of staff. The list of examples of gross misconduct included gross fundamental breach of contract/terms and conditions of 8 of 28 employment (including the Trust values and behaviours); intimidation, threatening behaviour, verbal abuse upon a member of staff and intentional or serious breach of the Trust’s equality and diversity policy. The version of the Trust’s equality and diversity policy that we were referred to post-dates the events with which we are concerned. However, there was no suggestion at this hearing that the version of the policy in place at the time of the events in question was materially different. The policy described bullying, harassment and discrimination in the workplace as ‘any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended’. It made it clear that harassment will not be tolerated.[38]The Trust also had a policy document entitled ‘bullying and harassment reporting and resolution procedure’. It provided for the possibility of concerns about harassment or bullying being dealt with informally or formally.[39]The claimant worked for the respondent Trust as a healthcare assistant from June 2010 until he was dismissed in January 2019. The claimant worked on Kirkdale Ward from 2016. Before that he worked on Bedale Ward. Mrs McIntyre had clinical and operational responsibility for six wards at the time of the events with which we are concerned, including Kirkdale Ward and Bedale Ward. She reported to the Head of Service, Mr Gardner.[40]In 2014 the claimant was the subject of a disciplinary investigation after an allegation was made that the claimant had made inappropriate comments. The claimant was first informed of those allegations by Mrs McIntyre, who was accompanied by Mrs Cowper of HR. There followed an investigation in which neither Mrs Cowper nor Mrs McIntyre were involved. Following the investigation, the then head of service decided that the case should not progress to a disciplinary hearing but that the claimant should receive some counselling from his line manager about what constituted an appropriate conversation to take place at work and advice on how to avoid being drawn into inappropriate conversations.[41]The claimant alleges he made a complaint about Mrs McIntyre at the time. His evidence as to how he made that complaint was somewhat confused and ambiguous, suggesting at one point that Mr Malcolm may have made the complaint on his behalf. For her part, Mrs McIntyre said she had no recollection of any such complaint.[42]In 2016 the claimant was the subject of another disciplinary investigation to consider an allegation that the claimant had displayed threatening and intimidating behaviour towards a patient. That allegation was considered by a Mr Lancashire. Mr Lancashire decided the claimant had committed misconduct and, on 23 November 2016, issued the claimant with a written warning which was to remain on his record for a period of 12 months. The claimant was given a right of appeal but he did not exercise that right.[43]At the time of the warning the claimant had been working on Bedale ward. The claimant was subsequently moved to Kirkdale ward. The move from Bedale ward was unconnected with the outcome of the disciplinary hearing: it had been suggested in an occupational health report obtained some months earlier 9 of 28 independently of the disciplinary investigation. Mr Lancashire explained in his letter of 23 November 2016 that the move was unconnected with the disciplinary matters.[44]Miss Palmer and Mrs Appleton were healthcare assistants based on Kirkdale Ward. In January 2017, Miss Cate started work on Kirkdale Ward as a newly qualified staff nurse. As a staff nurse she had supervisory responsibilities for healthcare assistants, including the claimant. Miss Jenaban joined Kirkdale Ward as a newly qualified staff nurse in March 2018. Staff nurses and healthcare assistants reported to the clinical lead, Ms Adams, and the ward manager, Ms Tully. They, in turn, reported to Mrs McIntyre.[45]Ms Jenaban found the claimant difficult to manage. She felt he was unwilling to take instruction from her. On one occasion she considered he had embarrassed her and undermined her in front of a client by correcting her when she mispronounced some medication. Miss Cate also found the claimant somewhat difficult to manage. The claimant believed Miss Cate treated him unfavourably compared to others, in particular another member of staff with whom she was friendly (and eventually began a relationship with). The claimant complained to Ms Tully and/or Ms Adams during supervision treatments about what he considered to be unfair treatment by Miss Cate.[46]On 10 August 2018 the claimant was at work. During his shift Miss Cate and/or Miss Jenaban referred a patient to hospital because they believed he had had or was having a fit. Before referring him to hospital the patient had been given rectal diazepam. The claimant accompanied the patient to hospital. The claimant’s opinion was that the patient was not having a fit and did not need to go to hospital. He was critical of the way Miss Cate and Miss Jenaban had dealt with the patient. Upon his return from hospital he made what he said was a joke, shaking his leg in a way he said was supposed to resemble the way the patient had been moving before being referred to hospital and asking if it was time for his diazepam. The claimant referred to either oral or rectal diazepam. It is not necessary at this juncture for us to make a finding as to what exactly the claimant said.[47]That day, Mrs Appleton, Miss Cate and Miss Jenaban complained that the claimant had made inappropriate comments whilst at work. They referred to the claimant’s comments about diazepam but also other comments they said the claimant had made. They each set out their complaints in written statements. It is unnecessary for us to set out here exactly what each of them claimed the claimant had said: the statements are in the bundle. In summary, they each claimed that the claimant had made inappropriate comments on a number of occasions, several of those comments being sexual in nature. We set out later in this judgment our findings as to how those statements came to be made.[48]A couple of days after providing her statement Mrs Appleton began a period of sick leave.[49]On 14 August 2018 Mrs McIntyre met with the claimant and told him that allegations had been made against him and he was being suspended from work while the allegations were investigated. Present at that meeting were Mr Smith from HR and Mr Malcolm, the claimant’s union representative. In the meeting Mrs 10 of 28 McIntyre described the nature of the allegations to the claimant. The claimant protested immediately, saying he would ‘never ever’ do what he had been accused of. Mrs McIntyre explained that there would be a full investigation and that in the meantime the claimant would be suspended on full pay and that he would have a meeting with the investigating officer to talk about the allegations and say everything he wanted to say. Mrs McIntyre told the claimant he should not make any contact with witnesses or attend Trust premises without prior permission during his suspension.[50]The next day, Mrs McIntyre wrote to the claimant to confirm what they had discussed during the meeting. The letter said ‘I informed you that an allegation had been made that: you have on a number of occasions displayed inappropriate behaviour towards female colleagues, some of which has been perceived as derogatory and sexual in nature and could be construed as sexual harassment. This is a serious allegation, which needs to be investigated. If proven, it would be in breach of the Trust’s policies and procedures and could be construed as gross misconduct.’[51]There was a dispute on the evidence as to whether, at this meeting, Mrs McIntyre gave the claimant copies of the statements that had been made by Mrs Appleton, Miss Cate and Miss Jenaban. On cross-examination the claimant denied having been given copies of the statements during that meeting and said he ‘would like to think’ that he had not seen them until he was sent a copy of an investigation report four months later, a few weeks before his disciplinary hearing. Mrs McIntyre’s evidence was that she gave the claimant copies of the statements made by Mrs Appleton, Miss Cate and Miss Jenaban, as well as a copy of the disciplinary procedure. Mr Malcolm’s evidence was also that the claimant was given copies of statements at this meeting. Support for the respondent’s position can be found in the letter sent to the claimant on 15 August 2018, which says ‘at the meeting you were provided with copies of statements made by three members of staff.’ There was no suggestion that the claimant or his union rep had responded to that letter saying he had not been provided with the statements referred to. It was put to the claimant in cross examination that if he had not received the statements as suggested in the letter, he would have asked for them. The claimant’s initial response to that suggestion was that he did not ‘look at that’ because of his frame of mind and the state of his mental health and physical health at the time. Further support for the respondent’s position appears in a note of a meeting that took place between the claimant and Mr Haytack as part of Mr Haytack’s subsequent investigation into the allegations that the claimant. The record of what was said by the claimant indicates that the claimant was familiar with the allegations that had been made. When asked in cross examination whether he was suggesting he did not have the statements when he attended this meeting, the claimant said ‘I do not think I had them’. When confronted with these notes during cross examination the claimant described them as ‘a lie’. When it was put to the claimant that he would have made sure he knew the specifics of the allegations at that meeting, the claimant responded that he did ask but that no one had given the statements to him. When asked who he had asked for the statements and when he had asked for them, the claimant initially said ‘I don’t know the date when I had the interview’ then when asked if he was able to answer the question he said ‘I can’t recall who I asked, if I asked.’ When it was pointed out to the claimant that the notes of the 11 of 28 investigation with Mr Haytack suggest that the claimant had commented on the specific allegations made by the complainants, the claimant changed his position. The claimant said ‘I’m sure at that time I had the statements’, and suggested that Mr Haytack had provided him with the statements. When asked if he had been provided with the statements before the meeting by Mr Haytack the claimant responded ‘maybe, or in the meeting, I’m not sure.’ When the claimant was reminded that he had said earlier in his evidence that he had not been sent the statements made by his colleagues until he received Mr Haytack’s report the claimant said ‘I got it wrong’ but then, when asked again whether he accepted that he knew what the allegations were by the time Mr Haytack asked him about the statements, the claimant said ‘I don’t recall when I got the statements.’ The claimant then conceded that he did know what the allegations were during the investigation meeting.[52]We found the claimant’s evidence to be contradictory and inconsistent. We prefer the evidence of Mrs McIntyre and Mr Malcolm on this matter, which is supported by the fact that the contemporaneous letter confirming suspension referred to the claimant having been given copies of the statements, and the fact that, at the claimant’s meeting with Mr Haytack, the claimant was clearly aware of the specific allegations that had been made against him. We find that the claimant was given copies of the statements made by Mrs Appleton, Miss Cate and Miss Jenaban at the meeting on 14 August 2018.[53]Mr Haytack was commissioned to carry out an investigation into the allegations that had been made. Mr Haytack did not know any of the complainants. He is employed by the respondent Trust specifically to investigate disciplinary matters. He has been employed in that role since December 2007. He was previously a police detective chief inspector with experience of leading investigations into serious crimes.[54]During his investigation, Mr Haytack interviewed the following individuals: 54.1. Miss Cate and a Ms Tillotson (on 21 August); 54.2. Miss Jenaban and Miss Palmer (on 7 September); 54.3. the claimant (on 26 September); 54.4. a Ms Briggs (28 September); 54.5. a Mr Fitt (3 October); and 54.6. Ms Adams (10 October).[55]Mr Haytack did not interview Mrs Appleton because she was on sick leave during the investigation. There was no confirmed end date to her sickness absence at the time and, having discussed the matter with the ward manager and clinical lead, Mr Haytack was reluctant to ask Mrs Appleton to attend while she was on sick leave.[56]Mr Malcolm had told the claimant he was unable to attend the meeting between the claimant and Mr Haytack on 26 September and the claimant attended alone. Mr Haytack asked him at the beginning of the hearing if he was happy to go ahead without a representative and the claimant said he was.[57]At the beginning of the interview the claimant handed over to Mr Haytack a written statement he had prepared. The claimant denied making any of the inappropriate 12 of 28 comments he was alleged to have made. He did say he had made a comment to Miss Cate once that he would not go out with young girls who use social media, in the context of discussions about Facebook. He claimed that Miss Cate and Miss Jenaban were making their allegations against him maliciously. He also claimed that Miss Jenaban was being used by Miss Cate and that another colleague, a Ms Hood, wanted him to lose his job. The claimant said in this meeting that Ms Briggs would have overheard some comments made by Mrs Appleton to the claimant on the night shift of 27-29 July 2018. It is because the claimant mentioned Ms Briggs and suggested she may have something to contribute that would be helpful to the claimant that Mr Haytack interviewed her two days later.[58]After meeting the claimant on 26 September, Mr Haytack sent the claimant a copy of the notes of the meeting. The claimant then returned a copy of the notes including another copy of the statement he had provided at the start of the meeting. He also included copies of emails he wanted Mr Haytack to consider and some comments on the notes and emails. He claimed that Miss Cate and Miss Jenaban were making their allegations against him maliciously because he had criticised them for the way they had dealt with a patient on 10 August. He alleged that Miss Cate and Miss Jenaban had conferred with Mrs Appleton to make the allegations together because of that, that Ms Palmer was making up stories to get him into trouble, and that he had previously made complaints about Miss Cate. He acknowledged that he had said, on 10 August, ‘can I have oral diazepam’ but said that was not sexual but was simply a joke intended to make the point that they had made a mistake in administering rectal diazepam to the patient. The claimant, also acknowledged that between 3 and 5 August 2018 he had said to Miss Cate ‘I don’t go out with a woman less than the age of my children because it was inappropriate’. In the statement he provided to Mr Haytack the claimant described the allegations against him as baseless, unfounded, trumped-up and malicious and meant to tarnish his name, reputation and professionalism and make him look unemployable. He said ‘I truly believe these accusations are based on my race, skin colour and mere hatred from the three staff members namely: Miss Cate, Miss Jenaban and Mrs Appleton.’ He suggested there was a ‘plot’ involving more staff members in the ward.[59]It is unnecessary for us to set out here what other members of staff interviewed by Mr Haytack said other than to observe that Ms Palmer alleged that the claimant had made inappropriate comments to her, including comments of a sexual nature, on several occasions. We make further findings as to how Ms Palmer came to make that statement below. The notes of the interviews are in the hearing bundle. We find that those notes accurately record what the witnesses said.[60]Mr Haytack produced a report at the end of his investigation dated 22 October 2018. That report contained the original terms of reference requesting him to investigate, some background to the allegations, details of who Mr Haytack had interviewed, copies of the statements made by Miss Cate, Miss Jenaban and Mrs Appleton, copies of Mr Haytack’s notes from the interviews he had carried out, a copy of the disciplinary procedure and two letters from the claimant’s personnel file. The report also included a section headed ‘findings’ in which Mr Haytack summarised what the people he had spoken to in his investigation (including the claimant) had said, either in interview or in the statements provided. 13 of 28[61]On 7 November 2018 a letter was sent to the claimant from the Trust telling him that the investigation had been concluded and that ‘it has been considered that there is sufficient information to establish that there is a case to answer.’ The claimant was told that a disciplinary hearing would be convened to hear the following allegation ‘you have on a number of occasions displayed inappropriate behaviour towards female colleagues, some of which has been perceived as derogatory and sexual in nature and could be construed as sexual harassment.’ The letter went on to say ‘I must advise that should these allegations be upheld that they could be deemed to be gross misconduct and an outcome of any disciplinary hearing may result in the termination of your employment.’ The claimant was told in that letter that he would be entitled to be accompanied by a companion at the disciplinary hearing. The letter was signed by or on behalf of a Ms King, described as ‘commissioning manager’. Mr Haytack’s evidence was that it was Ms King who had asked him to carry out the investigation. We accept that was the case.[62]The claimant alleges in these proceedings that Mr Haytack produced a report recommending disciplinary action. We do not accept that was the case. His report did not in fact make any recommendations. It reads as an impartial report that does not seek to influence the decision maker either way. The decision to take disciplinary action was made by Ms King, and it was Ms King who, after receiving the report, decided to take disciplinary action.[63]The decision as to who would hear the claimant’s appeal was determined by reference to a rota. The rota contained the names of managers who would hear appeals on particular dates and HR officers who would assist at the disciplinary hearing on those dates. The claimant’s disciplinary hearing was arranged for the first suitable date. Mr Mayo was on the rota to deal with disciplinary hearings for the date allocated to the claimant’s hearing. From an HR perspective Mrs Cowper was on the rota on that date for disciplinary matters.[64]On 19 December 2018 Mr Mayo sent a letter to the claimant telling him that a disciplinary hearing had been scheduled for two days on 21 and 22 January 2019. He explained to the claimant that he would be the determining manager and would be accompanied by Mrs Cowper of HR. The allegation to be heard was repeated in same terms as set out in previous correspondence and the claimant was reminded that he was entitled to be accompanied by a trade union representative or companion/colleague. Mr Mayo said that Mr Malcolm had confirmed his attendance. Mr Mayo enclosed a copy of the investigation report with his letter. He also sent a copy to Mr Malcolm. He repeated that ‘an outcome of any disciplinary hearing may result in the termination of your employment. It may also result in a recommendation to refer you to the appropriate professional body and/or make a disclosure and barring service (DBS) referral.’ Mr Mayo told the claimant that Miss Cate, Miss Jenaban, Ms Palmer, Mrs Appleton, Ms Adams and Ms Briggs would be called as witnesses and that the claimant should let him know if he required any other witnesses to be present.[65]Before the disciplinary hearing Mr Malcolm asked Mr Haytack if another union representative, Mr Kanyuchi, could attend the disciplinary hearing along with him 14 of 28 as a development opportunity. We accept Mr Malcolm’s evidence that the reason he asked was because Mr Kanyuchi was a recently trained new representative and Mr Kanyuchi himself had asked Mr Malcolm if he could attend and that Mr Malcolm had checked with the claimant that he would be happy with Mr Kanyuchi attending before asking Mr Haytack. We were referred to emails which confirmed this and which show that the claimant and Mr Malcolm discussed Mr Kanyuchi attending. Mr Haytack replied that the witnesses might find it overwhelming to have another person present as well as the claimant and Mr Malcolm. Mr Haytack said that it was not his decision, however, and would be a matter for HR. Mr Malcolm did not take the matter further.[66]Before the disciplinary hearing Mr Malcolm told the claimant that if the allegations against him were upheld then dismissal was the likely outcome.[67]The disciplinary hearing began, as scheduled, on 21 January 2019. Mr Mayo read Mr Haytack’s report and the disciplinary procedure before the meeting and prepared questions for the claimant and the various witnesses to the alleged incidents. Mr Mayo is the respondent’s head of service mental health services for older people. He had never met the claimant until this disciplinary hearing.[68]Neither the claimant nor Mr Malcolm made any reference to Mr Kanyuchi during the disciplinary meeting. We find that neither Mr Malcolm nor the claimant suggested to Mr Haytack, Mr Mayo or anyone in HR, either before or at the disciplinary hearing, that the claimant wanted Mr Kanyuchi to attend because Mr Kanyuchi is black.[69]The hearing lasted approximately seven hours. All of the witnesses referred to in the letter inviting the claimant to the hearing attended in person except for Ms Briggs who joined at the appropriate time by telephone conference.[70]The claimant’s evidence to this hearing was that he was not permitted to ask any questions at the disciplinary hearing at all. However, in the letter the claimant prepared appealing against his dismissal he made repeated references to questions he asked of witnesses. That undermines the claimant’s evidence that he was not permitted to ask any questions. When referred to this in cross examination the claimant maintained that he had not been permitted to ask any questions of witnesses at all. In contrast, Mr Mayo’s evidence at this tribunal hearing was that the claimant was permitted to ask questions of the witnesses but that he became quite angry, even aggressive at times with the witnesses, he raised his voice on a number of occasions when putting questions to the witnesses and some of the witnesses became visibly upset. Mr Mayo said that eventually he asked the claimant to address questions to the witnesses through him and he then relayed the questions to the witnesses. Mr Malcolm’s evidence at this tribunal hearing was consistent with that of Mr Mayo. He said he could not recall whether the claimant had been stopped from asking any questions but at that he thought some of the questions the claimant asked might have been inappropriate and not helpful to his case, that the claimant had not followed his advice regarding the way he conducted himself and had not conducted himself well, that he himself had advised the claimant before the disciplinary hearing that he needed to be careful how he presented his case and that he should try to be calm and listen to the witnesses 15 of 28 and the panel but that, rather than asking questions, the claimant made statements, that the claimant did not follow the direction of Mr Mayo, that the claimant interrupted witnesses and interjected when Mr Malcolm himself try to ask questions and that he felt the claimant's behaviour could be perceived as intimidating to the witnesses. We note that the hearing lasted some seven hours. If the only questions being asked were those put by Mr Mayo, it is unlikely the hearing would have lasted that long.[71]Looking at the evidence in the round, we prefer the evidence of Mr Mayo and find that the claimant was permitted to ask questions of witnesses and he did so. However, because the claimant was perceived to be haranguing and upsetting the witnesses, Mr Mayo eventually intervened and asked the claimant to tell him what he wanted to ask the witnesses and Mr Mayo then put those questions to the witnesses. We accept that, in doing so, Mr Mayo is likely to have reframed the way some of the questions were put. Nevertheless, we find that the claimant was given a full opportunity to challenge the evidence of the witnesses and put his case in response to the allegations he was facing.[72]Mr Mayo then took some time the following day to consider the evidence and reach a decision. As part of that process he discussed the evidence with Mrs Cowper. The claimant alleges that Mrs Cowper influenced Mr Mayo’s decision to dismiss the claimant. It is clear from Mrs Cowper’s evidence that she and Mr Mayo reviewed the evidence and what had been said during the hearing together and she expressed her own views on who she thought was credible and the appropriate sanction. Mr Mayo’s evidence to this tribunal was that Mrs Cowper was present in ‘an advisory capacity’, to help with any procedural points and to take a note of the hearing. We accept that it was Mr Mayo’s responsibility to make the decision as to whether the allegations were upheld and if so what the sanction should be and that it was he who took those decisions. Considering the evidence in the round we are satisfied that it was Mr Mayo who took the decision to dismiss the claimant based on his own assessment of the evidence. We accept that Mrs Cowper was in a position to influence that decision but find that if Mr Mayo had disagreed with her view he would not have adopted her views in preference to his own.[73]It was suggested by the claimant that Mrs Cowper was seen and heard speaking with someone about his case during the disciplinary hearing. Mrs Cowper denies she discussed the case with anyone as suggested. We prefer the evidence of Mrs Cowper.[74]Mr Mayo concluded, on the balance of probabilities, that the incidents described by the claimant’s colleagues had happened. In particular, he reached the following conclusions: 74.1. During the nightshifts of 27-29 July 2018 the Claimant said to Mrs Appleton: 74.1.1. ‘I was dreaming about you last night and we were in bed together.’ 74.1.2. ‘I need a woman Sara, are you going to help me out?’ 74.1.3. ‘I like you Sara, why don’t you like me, you would like to be with me.’ 74.1.4. ‘I need to have a woman and you are going to oblige me.’ 16 of 28 74.1.5. That she should go home with him to his bed. 74.1.6. That he and Mrs Appleton would ‘have cute babies.’ 74.2. During the course of three nightshifts from 3-5 August 2018 the Claimant said to Ms Palmer that he wanted to have a ‘chocolate baby’ with her. 74.3. During the night shifts of 3–5 August 2018 whilst the Claimant was in the kitchen with Ms Palmer, the Claimant said to Ms Palmer “Cheese makes me rock hard for you”. Then, on Ms Palmer asking what the Claimant meant he replied, “cheese makes my dick rock hard for you in the morning.” 74.4. On an unspecified date in 2016, the Claimant said to Ms Palmer “take your break 4-5 so that we can both go round the back together.[75]Mr Mayo believed that: the claimant’s colleagues were genuinely affected by the claimant’s behaviour; they were uncomfortable being around him; they were anxious about being on the same shift as him; and they all just wanted his behaviour to stop. He formed the view that the claimant’s behaviour on those dates constituted sexual harassment and amounted to gross misconduct and he decided to dismiss the claimant without notice.[76]Mr Mayo also believed the earlier incidents described by the claimant’s colleagues had happened, although his decision to dismiss the claimant was based on the events of the night shifts of 27-29 July and 3-5 August 2018 and the comment made to Ms Palmer in 2016. As for the events of 10 August, Mr Mayo gave the claimant the benefit of the doubt. He recognised that it was possible that what the claimant said had been misunderstood or misconstrued and did not find that, on the balance of probabilities, there had been wrongdoing by the claimant on that date.[77]On 22 January 2019 Mr Mayo wrote a letter to the claimant terminating his employment. In that letter Mr Mayo said that, based on a consideration of all the evidence, he was upholding the allegation that the claimant had, on a number of occasions, displayed inappropriate behaviour towards female colleagues, some of which had been perceived as derogatory and sexual in nature and could be construed as sexual harassment. In his letter Mr Mayo gave an account of the evidence he thought was material and set out the main factors he considered when reaching his decision. He said ‘taking into account all the information presented I believe that it is reasonable to conclude that your actions constituted gross misconduct within the scope of the Trust’s disciplinary procedure. It is therefore my decision to summarily dismiss you with effect 22 January 2019 on the grounds of gross misconduct. Specifically: sexual harassment towards female staff.’ Mr Mayo’s letter reminded the claimant of his right of appeal against the decision and said the appeal should be made in writing within seven calendar days of receipt of his letter.[78]Mr Ekinu submits that the outcome of the disciplinary hearing was predetermined and decided well in advance of the investigation and disciplinary hearing. During the hearing our attention was drawn to the fact that the respondent could have dealt with the complaints informally under its bullying and harassment policy; it was 17 of 28 suggested that the fact that it did not do so but instead dealt with matters under its disciplinary procedure from the outset, and involved Mr Haytack in that investigation, indicates that the outcome was predetermined. We do not accept that that was the case. The complaints made against the claimant were of repeated inappropriate and in some cases highly sexualised comments made on more than one occasion to more than one employee. It would have been somewhat surprising, in the circumstances, if the respondent had decided not to initiate a disciplinary investigation. The fact that the respondent did so does not support an inference that the outcome was predetermined. It was Ms King who decided there should be an investigation. The investigation was carried out by Mr Haytack. Ms King then decided there should be a disciplinary hearing. The decision to dismiss the claimant was made by Mr Mayo independently of both Ms King and Mr Haytack. We are satisfied that Mr Mayo understood that it was for him to decide whether the claimant had made the comments attributed to him and, if so, what the appropriate sanction should be. We find that the outcome of the disciplinary proceedings was not predetermined as alleged.[79]The claimant texted Mr Malcolm to tell him he intended to appeal against his dismissal and asking for his help. Mr Malcolm responded that the claimant needed to submit his appeal as soon as possible and asked him if he had received a case form he had sent the claimant that needed to be completed so that they could obtain a legal opinion on making a tribunal application. Mr Malcolm, in response to the claimant’s request for help with his appeal, said he was in London for two days that week and then on duty two days and also busy with some other investigations. He suggested the claimant set out his appeal himself adding ‘I do not think an appeal will be successful but it will hold things till we get an opinion from Unison legal team.’ The claimant considered Mr Malcolm’s response to be unhelpful and that it demonstrated a lack of interest in helping him. He later complained to the union about Mr Malcolm.[80]The claimant appealed against his dismissal by letter of 28 January 2019. He set out his grounds of appeal in detail. The claimant’s appeal against dismissal was considered by Mrs Moody and the Trust’s Director of Operations, Ms Lonergan. Mrs Moody was the chair and it was for her to decide whether to allow the appeal. The claimant was accompanied to the appeal by Mr Johnston, Unison’s regional manager. The appeal hearing took place on 16 May 2019. Mr Mayo attended the appeal meeting to explain the reasons for his decision to dismiss the claimant. Ahead of the hearing he prepared a management statement of case setting out those reasons, which reflect the reasons given in the letter of dismissal. The claimant and Mr Johnston were given the opportunity to explain their grounds of appeal.[81]The claimant claims that Mr Mayo brought to the appeal hearing a list of words and phrases that he said justified his dismissal but that he (the claimant) had never seen the list before and had not heard before some of the words and phrases on the list. We accept Mr Mayo’s evidence that he had simply listed in a separate document the things the witnesses had alleged, during the disciplinary investigation, that the claimant had said. We reject the claimant’s assertion that he was unaware of those allegations: they derived from the statements and interviews 18 of 28 given by the four complainants which the claimant had been provided with ahead of his disciplinary hearing.[82]Mrs Moody decided to reject the claimant’s appeal. Although the respondent’s disciplinary policy says an employee will be notified of the outcome of an appeal within five days of the decision being made, the claimant was not sent a letter confirming the outcome of his appeal until 21 June 2019. Mrs Moody could not explain why it had taken so long for the claimant to be notified of her decision. Mrs Moody explained in some detail her reasons for rejecting the appeal in the letter of 21 June 2019. In that letter she addressed the points raised by the claimant in his appeal.[83]The claimant alleges in these proceedings that the allegations of inappropriate behaviour that were made by Miss Cate, Miss Jenaban, Mrs Appleton and Ms Palmer were all false and that Mrs McIntyre pressed them to make those false allegations and ‘drove through disciplinary proceedings to dismissal’. The Tribunal must, therefore, decide whether those allegations are well founded.[84]There is no evidence of anything in the working history between the claimant and Ms Palmer or Mrs Appleton that might provide either of them with an incentive or motivation to fabricate allegations. The claimant’s case is that they were motivated by ‘pure racism’. However, the claimant has not identified anything in their past behaviour towards him that might evidence antipathy towards him.[85]We found both Ms Palmer and Mrs Appleton the be compelling witnesses. They gave clear and convincing accounts of how and why they complained about the claimant when they did and why they had not made formal complaints sooner.[86]There are some differences between the evidence given by Mrs Appleton in her witness statement and that given by her in her statement on or around 10 August 2018 and in her August 2018 statement she did not give precise dates of comments made. She said that her memory of precisely what was said by the claimant on each occasion was affected by the sheer volume of inappropriate comments made by the claimant and the impact this had had on her mental health. She gave a persuasive account of how the comments made by the claimant had started with just occasional comments, which she had tried to brush off as a joke, then had become more frequent before stopping for a while and then starting up again. She said that she had asked the claimant to stop but he did not do so. She said the reason she had not complained sooner was that the staff were like family; they look after each other, rely on each other and have disagreements just like family; she thought she could handle it on her own at first and then felt ashamed that she had let it go on for so long. She said she eventually went to Ms Adams after the August shift after the claimant had persisted in making unwanted comments even after she had made it clear she was annoyed and told her what the claimant had said to her and that she would not work with him anymore; that Ms Adams asked her to make a written statement setting out what the claimant had said, which she did; and that she then a couple of days later had what she described as ‘a bit of a meltdown’ and was on sick leave for around three months. Mrs Appleton said she was not told anything about the disciplinary proceedings until she was told there was to be a disciplinary hearing. 19 of 28[87]Ms Palmer’s evidence was similarly compelling. She said that although the claimant routinely made inappropriate sexual comments to her she had not wanted to make a fuss, she thought it would be her word against the claimant’s, she is quite a private person and was dealing with some difficult things in her personal life and did not want any more stress so she kept things to herself and did not make a complaint, hoping that he would stop, even though his persistent comments got her down and caused her stress. She said she thought that if she that she was then contacted and told Mr Haytack wanted to meet with her for reasons that were not explained and only when she was in a meeting with him was she told that her name had come up in the course of a disciplinary investigation and he wanted to interview her about the matter. She, like Ms Appleton, said she did not discuss her complaints with anyone else.[88]What Miss Cate and Miss Jenaban said both in August 2018, at the disciplinary hearing and at the Tribunal hearing was consistent in all material respects with, and supported, what was said by Mrs Appleton and Ms Palmer. We acknowledge that, as a matter of theory, their difficult working relationship with the claimant might conceivably have engendered a degree of hostility towards him. We take this into account when weighing their evidence.[89]In contrast to the respondent’s witnesses, we did not find the claimant to be a compelling witness. We have outlined in our findings of fact above some specific examples of evidence given by the claimant that we found to be unreliable. Aside from those examples, we found the claimant was often evasive in his evidence. On a number of occasions when asked a direct question, the claimant failed to answer the question, often instead referred to other issues that were not pertinent to the matter about which he was being asked, seemingly to deflect attention. He claimant’s approach cannot be fully explained by nerves, unfamiliarity with the Tribunal process, and/or a keenness to ensure he told his story in full.[90]We note what Ms Nenguke says in her evidence but have not found it to be of assistance in determining whether the claimant has said what was attributed to him.[91]Looking at the evidence in the round, we prefer the evidence of the respondent’s witnesses to that of the claimant and find that it is more likely than not that the following occurred: 91.1. During the night shifts of 27-29 July 2018 the claimant made the following comments to Mrs Appleton: ‘I was dreaming about you last night and we were in bed together.’ ‘I need a woman Sara, are you going to help me out?’ ‘I like you Sara, why don’t you like me, you would like to be with me.’ ‘I need to have a woman and you are going to oblige me.’ That she should go home with him to his bed. 91.2. During those same shifts the claimant also said that he and Mrs Appleton ‘would have cute babies.’ 20 of 28 91.3. During the night shifts of 3-5 August 2018 the Claimant made the following comments to Ms Palmer: that he wanted to ‘have a chocolate baby’ with her; and ‘cheese makes me rock hard for you’ and, upon Ms Palmer asking what the claimant meant, ‘cheese makes my dick rock hard for you in the morning.’ 91.4. The claimant had made numerous sexual comments to Mrs Appleton and Ms Palmer in the past. 91.5. On 10 August 2018 the claimant made a comment about taking oral diazepam. Mrs Appleton thought the claimant was making a sexual comment by innuendo. She had had enough of the claimant making sexual comments and told Ms Adams she was no longer willing to work with him. Ms Adams spoke to Miss Cate and Miss Jenaban that day who also said that the claimant had made inappropriate sexualised comments and Miss Cate offered to give a statement. Ms Adams told Mrs McIntyre about the complaints that day during a meeting that had been arranged for some other purpose. Ms Adams said there had been a number of complaints made by female staff members about general disregard for female colleagues and sexualised comments and that the staff had asked for it to be raised formally. Mrs McIntyre spoke to Mr Smith in HR who advised her that they needed to gather written statements to then consider how to proceed. Mrs McIntyre relayed that to Ms Adams and asked her to ask the individuals involved to provide statements and then send them to her. Ms Adams did so. Miss Jenaban prepared a statement that day. Mrs Appleton and Miss Cate also prepared statements. Those statements were all passed on to Mrs McIntyre. A couple of days later Mrs Appleton began a period of sick leave due, at least in part, to the comments made by the claimant. 91.6. The Head of Service, Mr Gardner, the Head of Nursing, Ms Atkinson, and someone from HR decided that the claimant should be suspended pending an investigation. Mrs McIntryre told the claimant of that decision, as described earlier in our findings of fact. 91.7. Mrs McIntyre was not involved in the disciplinary proceedings beyond asking for witness statements to be gathered from those making complaints at the outset and informing the claimant that he was suspended pending an investigation. She did not speak with Mr Haytack, Mr Mayo or Mrs Moody about the investigation, disciplinary or appeal on any occasion or with Mr Malcolm after the meeting at which she told the claimant he was being suspended. 91.8. Miss Cate, Miss Jenaban, Mrs Appleton and Ms Palmer gave honest accounts to the Tribunal, and during the disciplinary proceedings, of the events as they had perceived and recollected them at the time. Their accounts of other interactions they had had with the claimant reflected their recollection of events as they perceived them.[92]In light of those findings, we reject the allegations that any of the individuals concerned made false allegations, that Ms McIntyre pressed them to make false 21 of 28 allegations and that Ms McIntyre drove through disciplinary proceedings to dismissal.[93]The claimant also alleges in these proceedings that Mr Malcolm colluded with others to facilitate or effect his dismissal. The claimant relies on the fact that Mr Malcolm told the claimant that if the allegations were upheld he was likely to be dismissed. However, it would have been obvious to any experienced union representative that if Mr Mayo believed the claimant had said what he was being accused of saying then he was likely to view that as serious misconduct. The fact that Mr Malcolm advised the claimant that dismissal would be the likely outcome in those circumstances does not even begin to support an inference that Mr Malcolm colluded with anyone to facilitate or effect the claimant’s dismissal. The claimant also points to the exchange of messages he had with Mr Malcolm about the preparation of an appeal against dismissal. However, in our judgement there is nothing in those messages, or in any other evidence before us, that supports an inference that Mr Malcolm colluded with others to facilitate or effect the claimant’s dismissal and we find that he did not. Conclusions Discrimination complaints
Conclusions
[94]The claimant has not established that any of the following things occurred: 94.1. that Miss Cate, Miss Jenaban or Mrs Appleton made false allegations of inappropriate behaviour by the claimant: as recorded above, we have found that the allegations they made were not false; 94.2. that Ms MacIntyre pressed those individuals and/or Ms Palmer to make false allegations; she did not press anyone to make allegations and in any event we have found that the allegations were not false; 94.3. that Ms MacIntyre drove through disciplinary proceedings to dismissal: Ms MacIntyre was not involved in the disciplinary proceedings beyond asking for witness statements to be gathered from those making complaints at the outset and informing the claimant that he was suspended pending an investigation; 94.4. that Mr Haytack produced a report recommending disciplinary action: his report did not in fact make any recommendations; 94.5. that Mr Malcolm colluded with others to facilitate or effect the claimant’s dismissal: there was no collusion.[95]It follows that the claimant’s complaints that the respondent discriminated against him in those ways is not made out.[96]With regard to the complaint that Ms Palmer provided evidence in support of false allegations made by Miss Cate, Miss Jenaban or Mrs Appleton, it is not disputed that Ms Palmer gave evidence, both to Mr Haytack and Mr Mayo, in which she made allegations that the claimant had made inappropriate comments towards her. That statement did not ‘support false allegations’ in that the allegations made by others were not false. We have found that Ms Palmer genuinely believed the allegations she was making were true. She made that statement because she had found the claimant’s behaviour to be inappropriate and upsetting and the fact that others had complained about similar behaviour enabled her to overcome her earlier reticence 22 of 28 to complain. There are no facts from which we could properly conclude that Ms Palmer’s decision to come forward and provide evidence was in any way influenced by the claimant’s sex or his colour or ethnic or national origins and that she would not have given evidence had the same comments been made to her by white employee, an employee with a different nationality or national origins or if a female employee had made equivalent unwanted comments of a sexual nature.[97]Mr Mayo took the decision to dismiss the claimant. He did so because he believed the claimant had made several inappropriate comments to female colleagues. Mr Mayo had reasonable grounds for believing the claimant had made those inappropriate comments: four of the claimant’s colleagues had made complaints that the claimant had made inappropriate comments and not only had he seen statements made by the claimant’s colleagues but he had heard directly from those colleagues in the disciplinary hearing and their evidence remained consistent; he gave the claimant an opportunity to question the witnesses and questioned them himself; he also saw what the claimant had said about the allegations in the investigatory meeting and heard from the claimant in person at the disciplinary hearing. We are satisfied that Mr Mayo considered the evidence with care before reaching his decision.[98]There are no facts from which we could properly conclude that Mr Mayo’s decision that the claimant had made a number of inappropriate comments to female colleagues was influenced, consciously or subconsciously, by the claimant’s sex or his colour or ethnic or national origins and that Mr Mayo would have reached a different conclusion if the same allegations had been made against a white employee, an employee with a different nationality or national origins or if a female employee had been accused of making equivalent unwanted comments of a sexual nature. In any event, we find that Mr Mayo’s conclusions were not so influenced.[99]In light of the nature of the comments made it is clear that the decision to dismiss the claimant rather than impose some lesser disciplinary sanction was reasonable and in line with the respondent’s policies. Mr Mayo believed the claimant to have made repeated unwanted sexualised comments to colleagues on more than one occasion and the claimant’s colleagues had told Mr Mayo they were upset by the comments. There are no facts from which we could properly conclude that Mr Mayo’s decision to dismiss the claimant was in any way influenced by the claimant’s sex or his colour or ethnic or national origins and that Mr Mayo would have imposed a lesser sanction if he had been dealing with white employee or an employee with different national origins or a different nationality or a female employee who had repeatedly made equivalent unwanted comments of a sexual nature. In any event, we find that Mr Mayo’s conclusions were not so influenced.[100]Although Mrs Cowper was in a position in which she could, potentially, have influenced Mr Mayo’s decision to dismiss the claimant, taking into account Mr Mayo’s evidence we are satisfied that she did not do so. We have found that the decision was Mr Mayo’s alone. In any event, there are no facts from which we could properly conclude that Mrs Cowper’s contribution to the discussion she had with Mr Mayo in the disciplinary proceedings was in any way influenced by the claimant’s sex or his colour or ethnic or national origins. The fact that Ms Cowper had had some limited involvement in disciplinary proceedings involving the claimant some four years 23 of 28 earlier comes nowhere close to persuading us that she was in some way biased against him. Therefore the claim that Mrs Cowper discriminated against the claimant by influencing Mr Mayo to dismiss him is not made out.[101]Mrs Moody rejected the claimant’s appeal because she too believed the claimant had made several inappropriate sexualised comments to female colleagues. Like Mr Mayo, she had reasonable grounds for believing the claimant had made those inappropriate comments. She formed that view after conducting a careful appeal in which she considered the evidence and what the claimant had to say about it. Again, there are no facts from which we could properly conclude that her decision to reject the appeal was influenced by the claimant’s sex or his colour or ethnic or national origins and that she would have reached a different conclusion if the same allegations had been made against a white employee, an employee with a different nationality or national origins or if a female employee had been accused of making equivalent unwanted comments of a sexual nature. In any event, we find that Mrs Moody’s conclusions were not so influenced.[102]It follows that the claimant’s claims of discrimination are not made out. Unfair dismissal Reason for dismissal[103]As recorded in our findings of fact above, Mr Mayo dismissed the claimant because he believed the claimant had done the following: 103.1. During the nightshifts of 27-29 July 2018 the Claimant said to Mrs Appleton: 103.1.1. ‘I was dreaming about you last night and we were in bed together.’ 103.1.2. ‘I need a woman Sara, are you going to help me out?’ 103.1.3. ‘I like you Sara, why don’t you like me, you would like to be with me.’ 103.1.4. ‘I need to have a woman and you are going to oblige me.’ 103.1.5. That she should go home with him to his bed. 103.1.6. That he and Mrs Appleton would ‘have cute babies.’ 103.2. During the course of three nightshifts from 3-5 August 2018 the Claimant said to Ms Palmer that he wanted to have a ‘chocolate baby’ with her. 103.3. During the night shifts of 3–5 August 2018 whilst the Claimant was in the kitchen with Ms Palmer, the Claimant said to Ms Palmer “Cheese makes me rock hard for you”. Then, on Ms Palmer asking what the Claimant meant he replied, “cheese makes my dick rock hard for you in the morning.” 103.4. On an unspecified date in 2016, the Claimant said to Ms Palmer “take your break 4-5 so that we can both go round the back together.[104]Mr Mayo dismissed the claimant for a reason relating to conduct. That was a potentially fair reason for dismissal. 24 of 28 Fairness[105]As recorded above, Mr Mayo had reasonable grounds for believing the claimant to have made those comments: four of the claimant’s colleagues had made complaints that the claimant had made inappropriate comments and not only had he seen statements made by the claimant’s colleagues but he had heard directly from those colleagues in the disciplinary hearing and their evidence remained consistent; he gave the claimant an opportunity to question the witnesses and questioned them himself; he also saw what the claimant had said about the allegations in the investigatory meeting and heard from the claimant in person at the disciplinary hearing.[106]Mr Ekinu submits that the outcome of the disciplinary hearing was predetermined and decided well in advance of the investigation and disciplinary hearing. We have found as a fact that that was not the case.[107]Mr Ekinu submits that the allegations were not properly and effectively investigated. In particular he submits that not all possible avenues of evidence were explored, such as supervision notes, emails and any other digital evidence. We are satisfied that the approach taken by the respondent in investigating the allegations was well within the range of reasonable approaches open to a reasonable employer. In particular: 107.1. Mr Haytack conducted interviews with those he considered may have something relevant to say, including Ms Briggs whom the claimant suggested may support his case. Mr Mayo heard from those witnesses at the disciplinary hearing. 107.2. A theme running through Mr Ekinu’s cross-examination of the respondent’s witnesses was the fact that neither Mr Haytack nor Mr Mayo investigated the content of emails, text and social media messages passing between the claimant and those who complained about him. His point appears to be that, had they done so, they would have seen that he had not attempted to contact any of the complainants asking them on dates or making inappropriate comments and the absence of any such communication supports his case that he did not make any inappropriate oral comments to the complainants. None of the complainants ever suggested, however, that the claimant had made any attempt to contact them by text or social media or made inappropriate comments by email. There was no dispute that no such communication took place. Neither Mr Haytack nor Mr Mayo needed to investigate emails and other communications to see that. The absence of any such communication does not in any way undermine the reasonableness of Mr Mayo’s belief that the claimant had made inappropriate comments when speaking with the complainants. 107.3. The claimant is critical of the investigation because he says if his supervision notes had been consulted they would have shown that he had made complaints about the way he had been treated by Miss Cate in the past, which would have bolstered his case that she was biased against him. We are satisfied that, in considering the evidence, Mr Mayo understood the claimant to be saying Miss Cate was biased against him and took that allegation into account when 25 of 28 weighing the evidence and reaching his conclusions: that appears from the letter in which Mr Mayo set out his decision to dismiss the claimant and a subsequent report he prepared for the purposes of the claimant’s appeal. 107.4. Another theme running through Mr Ekinu’s cross examination of the respondent’s witnesses concerned their knowledge of and sensitivity to cultural/racial differences. However, the relevance of those matters to this particular case was not explained and Mr Ekinu did not pursue the point in submissions. This was not a case in which the claimant claims he said things that were or could have been misconstrued or misunderstood by others due to cultural or racial differences: the claimant’s case all along has been that he simply did not say the things that Mr Mayo believed he said and for which he was dismissed.[108]The procedure followed by the respondent up to and including dismissal was reasonable in all other respects. In particular: 108.1. The claimant had an opportunity to put his case at the disciplinary hearing, including asking questions of the witnesses. He knew what the allegations against him were and had been given a copy of Mr Haytack’s report and relevant statements ahead of the disciplinary hearing so that he was able to prepare for it. Mr Mayo’s decision to stop the claimant asking questions directly at the hearing was within the range of reasonable responses open to a reasonable employer: he only intervened when he perceived the claimant was haranguing witnesses and in any event the claimant was represented by Mr Malcolm who was permitted to ask questions at the hearing and Mr Mayo endeavoured to put to the complainants the questions he believed the claimant wanted to ask them. 108.2. The decision made by Mr Haytack not to permit Mr Kanyuchi to attend the hearing was within the range of reasonable responses open to a reasonable employer. The claimant was to be represented by Mr Malcolm and Mr Malcolm had suggested to Mr Haytack that the reason for the request was to assist Mr Kanyuchi’s development, not for the benefit of the claimant. It was not unreasonable for Mr Haytack to refuse the request. 108.3. As well as being represented at the disciplinary hearing the claimant also had an opportunity to be represented when first interviewed: he agreed to the interview going ahead despite Mr Malcolm’s non-availability. We have rejected the claimant’s evidence that he did not know what the allegations were before that meeting.[109]Furthermore, the claimant was given the opportunity to appeal to someone independent and he did so. The claimant was given a reasonable opportunity to put his case on appeal, both in writing and at the appeal hearing, where he was represented by a union representative. We are satisfied that Mrs Moody was open minded and conducted a thorough appeal, engaging properly with the submissions made by the claimant. The only respect in which the respondent fell short in dealing with the appeal is with regard to the delay in notifying the claimant of Mrs Moody’s decision. That delay was unreasonable. Otherwise, however, the disciplinary and appeal process was thorough and fair. Looking at the all the circumstances, we 26 of 28 conclude that the procedures overall were fair notwithstanding the delay in telling the claimant the outcome of his appeal.[110]As for whether dismissal was a reasonable sanction, it is abundantly clear that the decision that the claimant’s repeated and sexualised comments constituted gross misconduct warranting summary dismissal is one which was open to a reasonable employer. Mr Haytack concluded that the comments constituted sexual harassment. That was a conclusion that was clearly a reasonable one for him to reach. We acknowledge that the respondent’s policy at the time listed harassment as an example of misconduct rather than gross misconduct. That did not preclude a finding that sexual harassment might, in some circumstances, be considered gross misconduct and that it did so in this case.[111]In all the circumstances we conclude that the respondent acted reasonably in treating the comments Mr Mayo found Mr Hombarume to have made as a sufficient reason for dismissing him. It follows that the claimant’s dismissal was fair. Wrongful dismissal[112]As recorded above, we have found that the following occurred: 112.1. During the night shifts of 27-29 July 2018 the claimant made the following comments to a colleague, Mrs Appleton: ‘I was dreaming about you last night and we were in bed together.’ ‘I need a woman Sara, are you going to help me out?’ ‘I like you Sara, why don’t you like me, you would like to be with me.’ ‘I need to have a woman and you are going to oblige me.’ That she should go home with him to his bed. 112.2. During those same shifts the claimant also said that he and Mrs Appleton ‘would have cute babies.’ 112.3. During the night shifts of 3-5 August 2018 the Claimant made the following comments to Ms Palmer: that he wanted to ‘have a chocolate baby’ with her; and ‘cheese makes me rock hard for you’ and, upon Ms Palmer asking what the claimant meant, ‘cheese makes my dick rock hard for you in the morning.’[113]The claimant cannot conceivably have considered those comments to be appropriate in the workplace.[114]The respondent’s policy makes clear that sexual harassment is unacceptable. In this case the claimant made several highly inappropriate and sexual comments to female employees over two shifts. We are satisfied that, in making those comments, the claimant committed gross misconduct and the respondent was entitled to terminate the claimant’s employment without notice.[115]The complaint of wrongful dismissal, therefore, is not made out. 27 of 28
Conclusions
[1]By an email dated 6 October 2021, the claimant sought reconsideration of the tribunal’s Judgment in this matter that was sent to the parties on 23 September 2021. By that judgment the tribunal dismissed the claimant’s complaints that the respondent discriminated against him and unfairly and wrongfully dismissed him.[2]A tribunal has power to reconsider any judgment where it is necessary in the interests of justice to do so: Rule 70.[3]The claimant’s application for a reconsideration under r 71 must first be considered by me as the judge who chaired the full tribunal which made it. If I consider there is no reasonable prospect of the original decision being varied or revoked, I must refuse the application. If I consider that there is some reasonable prospect of the original decision being varied or revoked I must seek a response from the respondent and seek the views of the parties on whether the matter can be determined without a hearing. The application is then to be determined by the full tribunal, whether it is dealt with at a hearing or on the papers. Case No: 2501897/2019[4]In deciding whether it is necessary to reconsider a judgment in the interests of justice, the tribunal must seek to give effect to the overriding objective to deal with cases fairly and justly. That includes taking into account established principles. Those established principles mean the tribunal must have regard not just to the interests of the party seeking the review, but also to the fact that a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final and to the public interest requirement that there should, as far as possible, be finality of litigation. As the court stressed in Flint v Eastern Electricity Board [1975] IRLR 277, QBD ‘it is very much in the interests of the general public that proceedings of this kind should be as final as possible.’[5]As Simler P said n Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA: “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 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. Tribunals have a wide discretion whether or not to order reconsideration.”[6]The basis of the claimant’s application, in essence, is that he disagrees with the Tribunal’s assessment of the evidence and he is seeking to reargue his case. The claimant was ably represented by Mr Ekinu at the hearing. The points made now by Mr Hombarume are substantially the same as those made by Mr Ekinu at the hearing (and/or by Mr Hombarume himself in his evidence) and which, to the extent we considered them relevant, we took into account when reaching our decision. The claimant is of course entitled to disagree with the tribunal’s assessment of the evidence. That is not a proper basis on which to overturn the judgment, however.[7]There is nothing in the grounds advanced by the claimant that could lead the tribunal to vary or revoke its decision. I consider there is no reasonable prospect of the original decision being varied or revoked. It follows that I must refuse the application.