Mrs D Goddard v Leicester City Council: 2600110/2017

EMPLOYMENT TRIBUNALS

Case No 2600110/2017

Between

Mrs D GoddardClaimant

Leicester City CouncilRespondent

Before

Employment Judge Britton

In person for claimant

Date 12 February 2018

JUDGMENT

[1]The claim of unfair dismissal is not struck out and a deposit is not ordered, the claim having more than a little reasonable prospect of success.

[2]The claim is amended to also include a claim of breach of contract (notice pay).

REASONS

The Hearing

[1]The reason for today’s Preliminary Hearing at my direction is the current state of this case which is a claim of unfair dismissal. There have been problems on the discovery front which I will endeavour to address and there have also been concerns by the Respondent that the one day for which this case was listed back when the claim was served on 1 February 2017 and which would mean a hearing on 24 May 2017 is inadequate and needs to be revisited. There were also issues raised by me when I considered this case on 19 April 2017 as to whether this claim should be struck out as having no reasonable prospect of success or a deposit ordered it having only little reasonable prospect of success. However after a very long day, at which the parties, and in particular the Claimant have been able to fully articulate the issues; and my having considered the draft trial bundle prepared by the Respondent and some additions to it by the Claimant, I think that the way forward is now clear.

[2]The basic scenario in this case is that the Claimant was employed as a domestic cleaner as part of a team at a hostel run by the Respondent known as Border House. She was employed there between 5 October 2005 and her summary Page 1 of 8 dismissal for gross misconduct for the use of racist language on 6 October 2016. Prior thereto she had an impeccable record.

[3]The reason why she was dismissed is to put at its simplest because one of her colleagues, Janet Haslam, made a covert recording on 9 October 2015 on her mobile phone. She had hidden it in her locker. She then raised a complaint to supervisor Betty Clarke circa 12 October and on 13 October she played to either Betty Clarke or the more senior manager Patrick Kelly, part of the recording. Patrick Kelly and/or Betty Clarke was sufficiently concerned to escalate the matter and because interalia they heard, in what is quite a short recording, the use of the words “Black bastard” uttered by the Claimant. Mrs Haslam was saying, her being as I understand it of Black Afro Caribbean ethnicity, that the remarks were directed at her. The recording played was full of background noise. At this first stage she would not leave the phone with the Respondent which via its IT department would obviously endeavour to filter out the background noise; apparently it covered a 6 hour plus recording albeit she had only played the key extract..

[4]Sometime later ,it seems to me in late November, Mrs Haslam sent in, via her trade union the crucial part of the recording by what is known as a media file. However it came in a format which the Respondent could not download. There was then a delay until it got it in a different format as a digital recording which meant the Respondent could listen to it. Circa that time the problem was as to whether or not it could be used as it was a covert recording. The advice of in-house legal was that in the circumstances it could be. Thus at that stage an investigation, at first discretely, was started by Mr Kelly, focusing on the Claimant and a colleague:Glenda Barnet. This was on the basis that from the transcript that I have read and the recordings that I have been played, that Glenda, who is the superior of the Claimant, was clearly present when the discussion took place and is overheard in respect thereof. There was a third person also present when the conversation which was recorded took place, namely Lorna Oswin, another domestic. She was not the subject I gather of a disciplinary investigation but I will come back to her. Whilst the Respondent was trying to clean up the recording because much of it was still difficult to hear, albeit the offending words could be made out, the disciplinary investigation formalised, and in that context the Claimant was sent a transcript.

[5]At her first interview conducted by Mr Kelly on 29 January 2016 she denied all knowledge of any such discussion and was adamant that she would never have referred to Mrs Haslam as a “Black bastard”.

[6]Then on 22 February the Claimant was sent a copy of the first digital recording. And so when she was interviewed again on 26 May 2016 she had listened to it. Furthermore on 10 May 2016 the Respondent had now sent out to both the Claimant for her disciplinary hearing and also to Glenda who was also having a separate disciplinary hearing, a copy of a CD that it had made which I will refer to as the “cleaned up version” in that IT had tried to get rid of the “dead air”, ie hissing and background noise from the recording it had received in order to make it more audible.

[7]The Claimant at the second interview now said that her memory had been jogged by listening to the recording or recordings and that she had been making reference to a spider when she used the phrase. She gave more explanation to the effect that she is always the one who has to deal with spiders which are common place at the hostel and because nobody else will; and that this was a particularly large spider. She also said that this reference to the spider was at a different time from the rest of the recorded conversation. In other words as now articulated more clearly Page 2 of 8 before me by her someone had altered the tape recording by cutting it so as to make it read as if this was all part of one conversation when it wasn’t. This goes to context: in other words was the Claimant being rascist about Mrs Haslam because she considered her to have not being pulling her weight earlier over placing toilet rolls in a WC. Also there is the issue as to whether the Claimant thought Ms Haslam was trying to falsely claim for an injury sustained at work which did not happen. So the contention is the editing was deliberately done to falsely put the black bastard comment in the wrong context: Furthermore that a motive could be because the Claimant had refused to support Mrs Haslam in her injury at work claim.

[8]So as to the integrity of the phone recording the Claimant has for sometime now been wanting further evidence out of the Respondent it seems to me based upon the proposition that the cleaned up recordings it produced were doctored by the Respondent. The latter has responded that it has nothing further to disclose have repeatedly explained what the IT department did. And on this topic I have seen the Claimant’s own expert report. I know it is rather limited because the Claimant cannot afford £7,000 for a full forensic investigation, but having said that the expert does not think that there is any significant difference between the recordings received by the Respondent and provided to the Claimant to which I have now referred. In other words he has not found evidence of any tampering with them, just the filtering and which of course is in all the parties interest. He can’t deal with the issue of whether there has been any interference with the overall 6 hours of recording that would have been on the mobile phone because of course it is not there for him to hear. So the issue becomes refined. It is whether Mrs Haslam or some one on her behalf, not the Respondent, doctored the original recording. Thus the issue becomes, if this was made sufficiently clear by the Claimant and her TU reps at the internal proceedings, as to what steps did the Respondent take to inquire into it. Mrs Haslam does not appear to have been re-interviewed and she was not called to any of the disciplinary hearings apparently because she was by now off long term with stress/anxiety. Furthermore what the Claimant says before me, and stresses that she tried to so explain at the internal proceedings, is that she has evidence that Mrs Haslam:-(a) had 2 mobile phones whilst at work and;

(b) may have during the period before she allowed the Respondent to hear the extract which she first introduced, via her brother who has an electrical shop in Birmingham, by implication falsified it in the way I have endeavoured to describe.

[9]This brings me on to the second point about everything I have read today. Not clear from the response but now clear from today’s discussions and references by Mr Kelly as investigating officer, particularly in his findings of a case to answer and at the disciplinary hearing, is that Glenda also had a disciplinary investigation. Furthermore her disciplinary hearing was on the same day as that of the Claimant and it was heard by the same person: Mr Evans. Mr Kelly had made references in the case against the Claimant that there was evidence of collusion he thought on the spider issue between her, Glenda and Lorna. This is because all three had originally denied all knowledge of the uttering of the words black bastard but then subsequently remembered about the black spider and that the Claimant had uttered the offending words in that context. But he did not exhibit in the investigation pack, for the purposes of the disciplinary hearing of the Claimant the statements taken from Glenda, including of course her investigatory interviews, or from Lorna. I now know from the bundle in front of me that Lorna made a statement albeit it seems to have been prepared some months after the Page 3 of 8 start of this disciplinary investigation. And most important corroborated the black spider defence, but then it would appear that she would not sign that statement when it was provided to her in the usual way. The Claimant tells me today that this was on the advice of Lorna’s trade union. On as aside if that be correct then the trade union has much to answer for in that the same representative and union, GMB, was representing the Claimant. And of course if the Respondent knew that Lorna had made a statement but it surmised that she was not prepared to sign it because of the intervention of her trade union, then why didn’t it proceed in any event to require her to give evidence or charge her as an accomplice as it had done with Glenda? Of most importance even if the statement had not been signed, should it not have been served upon the Claimant in terms of the disciplinary pack and so she could at least address the issue and Mr Kelly’s view that there had been collusion? The same observation applies as to holding two disciplinary processes. Given that Glenda was found guilty of in effect aiding and abetting or failing to stop the Claimant therefore it arises out the same set of circumstances, surely the Claimant and Glenda should have been the subject of a joint disciplinary investigation and disciplinary hearing because amongst other things the evidence of the two of them on the spider issue and the assessment of collusion or not surely required the assessment of both of them in the same hearing. I make no findings of course and that is because these matters will need to be determined at the main hearing and when the Respondent witnesses have a chance to explain themselves more fully and of course can be cross examined.

[10]I also now know that the Claimant put in a grievance against Mrs Haslam in relation to matters. Maybe that was a pre-emptory strike by her trade union, ie a tactical move. Even so, initially the Respondent was of the view that it would investigate and hear that grievance, as it covered the same evidential territory, at the same time as the disciplinary hearing. That decision was revisited it seems and the decision was taken to hold them separately. I also now know that Mrs Haslam had brought a grievance against the Claimant, some of which at least links to the same events. So surely these grievances and certainly that raised by the Claimant should have been heard in the context of her disciplinary hearing? Thus it seems to me from what I have read so far that it meant that in some respects disclosure on the one front did not find its way into disclosure on the other.

[11]Therefore what it means is that I now no longer can say that this case has no reasonable prospect of success. I do find that the Claimant will have some explaining to do about the recording as it currently stands because on the face of it black spider would have nothing to do with the conversations recorded and given the context and in terms of allegedly shortly before there occurring the Claimant and Mrs Haslam having crossed swords over the issue of who was responsible for placing toilet paper in a particular room. But of course that depends upon the integrity of the mobile phone recording and also back to the fact that the issues that were raised by the Claimant do not appear to have ever been the subject of further investigation ie in the appeal process in terms of Mrs Haslam. So what it means is that there are on the face of it shortcomings in the way that this matter was handled. Therefore I also cannot say that it also has only little reasonable prospect of success and therefore I am also not going to make a deposit order. Breach of Contract Claim

[12]It is self evident from reading the claim form that the Claimant was also complaining that she had been dismissed without notice. Therefore I amend her claim as she is not legally represented to include a claim for breach of contract/failure to pay notice pay. It is also highly relevant for this reason. It often escapes parties and Page 4 of 8 particularly Respondents that although the test for whether a dismissal was fair is a range of reasonable responses test, it is not the same test for a breach of contract claim. For the latter to be successfully defended the Respondent must show on a balance of probabilities that the Tribunal Judge can be objectively satisfied that the Claimant acted in a way that fundamentally undermined trust and confidence. Thus the Tribunal could find that within the range of reasonable responses test an employer dismissed for a reason which is sustainable after a reasonable investigation, which is the British Home Stores and Burchell test, but might not necessarily find that nevertheless the threshold for being satisfied there was a repudiation of the contract of employment is met. So it means that a party could nevertheless therefore be awarded notice pay. But of course it is a matter for the Judge at the hearing. Discovery

[13]There has been lots of red herrings here. As now explained the Respondent has disclosed all it can on the mobile phone front. The issue is can you trust the integrity of the mobile phone extract given in by Mrs Haslam?

[14]There will be more than sufficient documentation in the trial bundle, plus from the orders I am now making, to enable a Judge to make a fair determination in this case. There is no need for any other documentation

[15]The Claimant has explained why she intends to call various witnesses. I can see why of course she would want to call Glenda Barnet who is a willing witness. I am not quite so clear as to why her husband is needed but doubtless all will be revealed as and when a witness statement is obtained from him. I can see why Mel Swindler, a Maintenance Operative (see Bp1 42) might be relevant but the Claimant should consider whether in fact she can simply rely upon what he told the investigator in that witness statement. Isn’t that enough to deploy the argument she wants to make about matters getting leaked? Heather Sylis: what she has to say in handwritten format has been shown to me and again I can see that she could be relevant, certainly in sketching a culture and climate in Border House within which was an alleged posse so to speak of those “close to the ear” of the management and who also may have treated other members of staff in a less than respectful way: and I note that if that was to be correct then one of that coterie was Mrs Haslam. The Claimant also wants to call Lorna Oswin. She says the problem is that as Lorna is still working for the Respondent: she may feel uneasy. However I think we can rest assured that the Respondent would not stand in the way of her being interviewed or giving evidence and that she would not fear any repercussions. Therefore we have agreed that the way forward is that Lorna Oswin will be asked if she is prepared to be interviewed. To that end Mr Goddard as the Claimant’s representative will send a polite letter to Mrs McDade for onward transmission to Lorna, which could be marked in the first instance if necessary private and confidential in which he will simply explain that he would like to interview her. If Lorna declines then he will obviously have to think about what to do. He could of course contemplate asking for a witness order but he would have to think it through whether there is any point if Lorna is unlikely to be helpful. On the other hand if Lorna is willing to be interviewed, then there is no property in a witness and therefore Ms McDade will make the arrangements for Mr Goddard to interview in the presence of a member of the legal team Mrs Oswin from which can then be agreed a record of what she has to say for her to then to be asked to sign as an accurate record which could then be used as her witness statement for the purposes of any hearing. 1 Bp = a page in the bundle before me. Page 5 of 8

[16]I then turn to the Respondent. Obviously given the way the case has expanded so to speak and the issues which I have now explored and which Mr McDade had already realised were probably on the agenda, hence her application for a longer hearing, I have now established that she is likely to call 6 witnesses. Given that we are going to have a trial bundle which will now extend into 2 bundles and therefore I think well over 700 pages, there has clearly got to be a reading in period on this case. The Judge can also of course read the witness statements. I am therefore providing for a reading in day. Obviously the existing hearing is cancelled.

[19]The directions that have already been made are hereby revised; that brings me to my orders for directions. ORDERS Made pursuant to the Employment Tribunal Rules 2013 Additional Discovery 1. The entirety of the Glenda Barnet disciplinary pack, including disciplinary hearing minutes and appeal if any and the outcome in each case will now be disclosed and form part of the trial bundle. 2. The same applies to the entirety of the Mrs J Haslam grievance. Furthermore for the avoidance of doubt in that context any recorded relevant conversations, in particular between Mr Kennedy and Mrs Haslam, already not disclosed. I make it plain of course that this is germaine to the issues; not in any wider context such as welfare issues. 3. Third there will be disclosed all documentation relating to the evidence gathering from Lorna, any document letters or other form of correspondence to her relating to any alleged collusion and if there is any trail thereafter whether it be in the form of e-mails, meetings or otherwise which is in the context of her not signing her statement then that is to be disclosed as well. 4. There is also to be disclosed the original notes of Paul Cox taken at the second disciplinary investigation meeting and second those of Ruth Barr who was the note taker at the disciplinary hearing. 5. As to this discovery what will then happen is as follows. The Respondent will by 13 July 2017 send the Claimant a revised trial bundle index and a second ring binder in terms of the documentation which would follow on from that in the first ring binder. Witness Statements Varied Deadline 6. By not later than 28 September 2017, the parties shall mutually exchange the witness statements of all witnesses on whom they intend to rely on. The witness statements are to be cross-referenced to the bundle and will be the witness’s main Page 6 of 8 evidence. The Tribunal will not normally listen to witnesses or evidence not included in the exchanged statements. The Claimant’s witness statement must include a statement of the amount of compensation or damages they are claiming, together with an explanation of how it has been calculated and a description of their attempts to find employment. If they have found a new job, they must give the start date and their take home pay. Witness statements should not routinely include a précis of any document which the Tribunal is to be asked to read. Witnesses may of course refer in their witness statements to passages from the documents which are of particular importance, or to the inferences which they drew from those passages, or to the conclusions that they wish the Tribunal to draw from the document as a whole. The Hearing 7. The hearing of this matter will now take place at the Leicester Employment Tribunal, Kings Court, 5A New Walk, Leicester LE1 6TE between Monday 20 November 2017 to end on Monday 27 November 2017 (excluding of course the weekend). Day one ie 20 November will be a reading in day to which the parties attendance will not be required. For the purposes of the reading in the Respondent will ensure that sent in, in good time for the use of the presiding Judge will be the following:-7.1 The trial bundle.

7.2 An agreed chronology.

7.3 An agreed cast list.

7.4 An agreed reading in list.

7.5 The combined indexed witness statement bundle. NOTES

(i) The above Order has been fully explained to the parties and all compliance dates stand even if this written record of the Order is not received until after compliance dates have passed.

(ii) Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.

(iii) The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.

(iv) An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Any further applications should be made on receipt of this Order or as soon as possible. The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’: https://www.judiciary.gov.uk/wp-content/uploads/2014/08/presidential-guidancegeneral-case-management.pdf

(v) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise). The Tribunal may Page 7 of 8 order a departure from this rule where it considers it in the interests of justice to do so.” If, when writing to the tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written.

[1]Mrs Deborah Goddard, who was employed by the Respondent as a Domestic Cleaner from 5 October 2005 to 6 October 2016, brings a complaint of unfair dismissal By virtue of an amendment granted at a Preliminary Hearing on 3 May 2017, she also brings a claim for breach of contract.

[2]The Claimant has throughout these proceedings represented herself and assisted by her husband who has written a number of letters on her behalf in the course of proceedings and also attended as his wife’s representative at earlier Preliminary Hearings. At this full merits hearing, after commencing the advocacy on his wife’s behalf he gave way to Miss Baker, a family friend who, despite not having any legal qualifications and experience, has put the case very ably on the Claimant’s behalf.

THE FACTS

[3]Mrs Goddard was employed at Border House, a homeless hostel for families and pregnant single women, as a Hostel Domestic. Service users of the hostel are from a range of ethnic backgrounds.

[4]The Claimant was part of a Domestic team of 8 such workers who reported to a Premises Officer. The main role of Domestics is to ensure the cleanliness and good upkeep of the flats. They often come into contact with service users. There were issues and some minor conflict between staff but this was not on racial lines. Mrs Janice Haslam, another Domestic was part of the same team as the Claimant. Also employed within the team was Mrs Lorna Oswin, Mrs Heather Sills and Mrs Glenda Barnett, the latter being the Domestic Supervisor and line manager for both the Claimant and Mrs Haslam. Mrs Barnett’s line manager was Mrs Betty Clark, the Assistant Hostel Manager. Mrs Clark’s line manager was Mr Patrick Kelly. Mrs Haslam is of African Caribbean origin and black skin colour as is Mrs Clark. The Claimant, Mrs Barnett and Mr Clark are all of white skin colour.

[5]In the run up to the events leading to events of this case, Mrs Haslam and Mrs Goddard, who had been friends for some years, had suffered a serious falling out. Mrs Goddard claimed that Mrs Haslam wanted support for a personal injury claim and Mrs Goddard appeared unwilling to provide that support. Whatever the reasons behind the state of affairs, relationships had soured to the point where unfavourable comments were being said behind Mrs Haslam back, or so she suspected. Mrs Haslam felt she needed some hard evidence. She decided to secretly record telephone colleagues’ conversations in the main Domestic suite where Mrs Goddard and colleagues would gather for breaks.

[6]On Friday 9 October 2015, Mrs Haslam placed her mobile phone within one of the lockers in the suite and began recording from 9:00 am. She did not know what time her colleagues would be gathering for a rest break so she set the recording for all day. The recording continued until 3:00 pm. When replaying the recording, Mrs Haslam was shocked to hear what she heard. They consisted of racist comments which she concluded must be about her. She also heard some of her colleagues laughing at those comments. The offending part of the conversation occupied only a small part of the overall recording. On Monday 13 October, Mrs Haslam played the relevant part to Mrs Clark. Mrs Clark immediately contacted Mr Kelly so that he too could listen to the recording. Mrs Haslam was so upset at what she heard that she went off on sick leave and submitted a grievance. Mr Kelly, who had known Mrs Goddard for some years, was able to readily identify Mrs Goddard’s voice as the one making the offending remarks. The recording had a lot of background noise but he could clearly make out the words “black bastard” being spoken.

[7]Mr Kelly contacted Mr Cox, an HR Adviser to seek advice on whether the recording was something that could be relied upon as it was done secretly and on a personal device. He also wanted to meet Mrs Haslam to learn more of the circumstances. Because of Mrs Haslam’s illness, the meeting could not take place until 28 October 2015. It was at that meeting that Mr Kelly was able to hear the relevant parts of the recording as Mrs Haslam was not keen on letting go of her mobile phone. Mr Kelly could discern that the words “fucking black bastard” were used. Some of the other words were unclear but they appeared to sound like “little” or “looking”.

[8]On 11 November 2015, in what was intended to be a meeting to deal with several matters but also treated as the grievance meeting on behalf of Mrs Haslam, it was agreed that copies of the recordings of the conversations would be provided to the Respondent in order to prepare a transcript. There were difficulties in accessing the files because the original format on the mobile phone did not easily lend itself to a transfer to any of the Council’s systems. When the files were eventually accessible Mr Kelly decided that there was sufficient evidence for the Claimant to be suspended and that he did on 14 December 2015. In the suspension letter Mr Kelly made it clear that the reason for suspension was because of the Claimant “using unacceptable and racist language in the domestic suite… and that this was in reference to a colleague, Ms Janice Haslam”. Mr Kelly did not make any reference at that stage to a recording.

[9]Mr Kelly undertook his investigation into the matter between 14 December and 21 December 2015. In doing so he interviewed a number of staff at Border House.

[10]In January 2016, Mr Kelly attempted to arrange an investigatory meeting with the Claimant’s and her trade union representative, Mr Andy Betts. The first of the two investigation meetings between the Claimant and Mr Kelly took place on 29 January 2016. Mrs Goddard denied making any racist statement but gave no explanation as to what she had said. The Claimant alleges that Mr Kelly called her “a liar and a racist” at the meeting.

[11]At a further meeting on 29 January, the Claimant was provided with a written transcript of the audio recording. Mrs Goddard denied making the statement as to “that fucking black (either ‘little’ or ‘looking’) bastard”.

[12]Shortly after the first investigation meeting, Mr Kelly had e-mailed the Claimant’s trade union representative with four audio files and the relevant transcript. In early February 2016, Mr Kelly wrote to Mrs Haslam to say that he had decided to uphold her grievance. In the letter Mr Kelly makes it clear that he upheld the grievance around the use of racist language in the Domestic suite of Border House.

[13]On 5 February 2016, Mrs Goddard and Mrs Barnett lodged a grievance in respect of the covert recording. As a consequence of the grievance, the Respondent decided to put the disciplinary procedure on hold pending the outcome of the grievance.

[14]Although the initial recording of the discussions which Mr Kelly had listened to was tolerably clear, the sound quality was not the best and there was a great deal of background noise. In preparation for the disciplinary hearing he made enquiries as to how the quality could be improved and the background noise or hiss reduced. He got in touch with the Council’s Corporate Investigation Team who told him that unfortunately the Council did not have the technical equipment which would help to improve quality. In April 2016, Mr Kelly made a formal request to the Council’s ICT department and later that month one of the infrastructure engineers was able to improve slightly the quality of the relevant track. The result was to remove background noise without interfering with the actual recording in any way.

[15]A second investigatory meeting was arranged for 26 May 2016. At this meeting the “clean” recording was played to the Claimant. By this stage a second and more accurate transcript was available, the material part of which was as follows: [The initials of those speaking are as follows: DG = Deborah Goddard, LO = Lorna Oswin, GB = Glenda Barnett] DG: “Some things weren’t put back in the chill out toilet, you never know who fucking knows do ya” LO: “Who’s that then” DG: “That fucking black little bastard… She looked at me like that, in the kitchen so I went like that, I couldn’t help it.” GB or LO: “What?” DG: “She looked at me like that with her eyes, like that” [Gives out a loud laugh]. GB: Gives out a loud laugh. LO: “Oh ya fucker”.

[16]At this point Mrs Goddard now gave an explanation of what her remarks were about. She said she now recalled that the incident was about a spider. Mrs Goddard said that she remembered that there was a spider which had jumped out at her. She referred to it as ‘she’ because it was female she believed female spiders are large. Mrs Goddard did not challenge the accuracy of the transcript itself.

[17]Mr Kelly arranged to meet Mrs Barnett and Mrs Oswin for their views on the Claimant’s explanation and attempted to obtain statements from them. Both of them supported the Claimant’s version of events.

[18]In July the Claimant was invited to a disciplinary hearing and was told that her grievance appeal would be considered on the same day as the disciplinary hearing. Both processes would be conducted by Mr Mike Evans on 6 October 2016, the first stage of the grievance having been dismissed on 23 August 2016 by Mr Mahoney.

[19]Following the hearing on 6 October 2016, Mr Evans decided that the Claimant would be dismissed for gross misconduct. That is agreed as the effective date of termination. Mr Evans also dismissed the grievance appeal.

[20]On 12 January 2017 the Claimant presented her claim to the Employment Tribunal.

[21]The Respondent also dismissed Mrs Barnett on 27 October 2016 for failing to challenge Mrs Goddard when she had heard the Claimant make offensive and racist comments and was instead heard to be laughing. The reason for dismissal also included two other matters but the main allegation of gross misconduct in Mrs Barnett’s case related to her conduct on 9 October 2015.

THE LAW

[22]Section 98(1)(2) and (4) of the Employment Rights Act (“ERA1996”) states: “(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 it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (b) relates to the conduct of the employee, (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 whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[23]Section 122(2) of ERA 1996 states: “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

[24]Section 123(1) and (6) ERA 1996 states: “(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

[25]Both the basic and compensatory awards may therefore be reduced (under sections 122(2) and 123(6) ERA 1996) by reason of contributory conduct on the part of an employee, though on slightly different principles. In University of Sunderland v Drossou (

UKEAT/0341/16

) the Employment Appeal Tribunal has made it clear that whilst the statutory provisions are slightly different, any percentage reduction should generally be the same for both the basic and compensatory awards.

[26]A Tribunal may also reduce the amount of compensation by the appropriate percentage to reflect the possibility that the employee could or would have been dismissed fairly in any event if the dismissal was ‘procedurally’ unfair. This is the socalled ‘Polkey’ principle (Polkey v AE Dayton Services Ltd

[1987] IRLR 503

). A Polkey reduction is only applicable to the compensatory award. There is no reason why an award may not be reduced for both Polkey and for contributory conduct (Robert Whiting Designs Limited v Lamb

[1978] ICR 89

). The tribunal must limit the Claimant’s compensatory award if there is reliable evidence on which it can conclude that dismissal would have happened in any event (Software 2000 Ltd v Andrews

[2007] ICR 825

). Where the tribunal can say with certainty that dismissal would have happened in any event by a particular date (the “safe date”), compensation should be limited to that safe date (O’Donoghue v Redcar & Cleveland Borough Council

[2001] IRLR 615

]. In Polkey cases it is necessary to ask:-26.1 If a fair process had occurred, would it have affected when the Claimant would have been dismissed?

26.2 What were the percentage chances that a fair process would still have resulted in the Claimant’s dismissal?

[27]In applying section 98(4) ERA 1996, it is necessary to bear in mind the guidance repeated in HSBC Bank plc v Madden

[2000] ICR 1283

,namely that: “(1) In applying the above section the Tribunal must consider the reasonableness of the employer’s conduct, not simply whether the Tribunal would have done the same thing. (2) The Tribunal must not substitute its decision as to what was the right course to adopt. (3) There is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view another employer quite reasonably take another. (4) The function of the Employment Tribunal is to determine whether the dismissal of the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band it is unfair.” CONCLUSIONS Procedural unfairness

CONCLUSIONS

[28]Prior to the hearing the Respondent conceded that the dismissal was procedurally unfair. The basis of the concession was that:-28.1 Mr Kelly upheld Mrs Haslam’s complaint of race discrimination prior to completing his investigation into the disciplinary charges against the Claimant. It is accepted that Mrs Haslam’s grievance should have been adjudicated upon at the same time as the disciplinary charges against the Claimant;

28.2 the Claimant had questioned the integrity of Mrs Haslam’s recording. Prior to the disciplinary hearing on 6 October 2016, the Respondent should have formally put to Mrs Haslam the allegation that she (or someone on her behalf) had tampered with the recording;

28.3 the Respondent should have adjudicated upon the allegations levelled against the Claimant and Mrs Barnett at the same time rather than consecutively;

28.4 the Claimant should have been provided with the documentation that particularised Mrs Barnett’s defence for use at the disciplinary hearing.

28.5 the Claimant should have been provided with the documentation recording the recollections of Mrs Oswin for use at the disciplinary hearing. Mrs Oswin was interviewed by Mr Kelly on 1 June 2016 and whilst a note was taken of that discussion, Mrs Oswin subsequently refused to sign it on union advice. Unlike Mrs Barnett Ms Oswin was not disciplined.

[29]Notwithstanding these procedural irregularities, which were rightly conceded in my view, it is the Respondent’s case that the Claimant would have been fairly dismissed in any event under Polkey. Alternatively, Ms Masters submits that both the basic and compensatory award should be reduced to nil on the grounds that the Claimant contributed wholly to her dismissal. It was therefore still necessary to consider the issue of ‘substantive’ fairness under section 98(4) ERA 1996. The investigation

[30]The Claimant’s criticisms of the dismissal centre almost entirely upon the conduct of the investigation rather than the rationale of the decision, the honesty and genuineness of the belief in misconduct or the reasonableness of that belief. At the start of the hearing the Claimant was asked, with assistance from Miss Baker, to reduce those criticisms into written form.

[31]The criticisms are as follows:-31.1 That the Claimant was initially not told of a tape recording;

31.2 That the Claimant was questioned not just on a transcript from Mrs Haslam’s mobile phone but also from Mrs Haslam’s witness statement and the grievance, both of which were not made until June 2016 and November 2015;

31.3 That the Claimant did not have sight of the transcripts and was “questioned blind”;

31.4 That the investigation meeting was cursory on the first occasion lasting only 15 minutes;

31.5 That no notes were taken or a tape recording made of the second investigation meeting;

31.6 That the second investigatory meeting was convened on a pretext and was not a ‘new’ investigation at all;

31.7 That the Claimant had been in possession of a recording for months and was able to put her interpretation forward;

31.8 That the Claimant was called “a racist and a liar” by Mr Kelly (and thus presumably the investigation was conducted unfairly);

31.9 That Mr Kelly should have interviewed other witnesses;

31.10 That the investigation failed to disclose that witness statements that had been taken from Border House staff that supported the Claimant.

31.11 That relevant witnesses were not interviewed immediately (by which is presumably meant that it was not within a reasonable period);

31.12 That Mr Kelly had no justifiable reason to suspend the Claimant;

31.13 That Mr Kelly did not inform the Claimant of her data protection rights;

31.14 That Mr Kelly failed to investigate a breach of confidentiality in relation to the audio recording before the Claimant had been provided with a copy;

31.15 That the transcripts of the recording differed from the first investigation meeting to those sent to the Claimant later;

31.16 When the transcripts were sent to the Claimant in July they differed from those sent in February 2016;

31.17 That the Claimant was not sent an invite letter for the second investigation meeting;

[32]Dealing with all of those criticisms in the round, I do not find that any of them rendered the investigation defective or such that the investigation fell outside the band of reasonable responses. For the sake of completeness I will deal with each of them separately:-32.1 The Claimant was clearly told of a tape recording at the first investigatory meeting on 29 January 2016 as is apparent from the notes;

32.2 This practice falls within the ‘reasonable range’ in matters of investigation;

32.3 The Claimant was provided with a copy of the transcript before and after the investigation process was concluded;

32.4 Although the investigation meeting was relatively brief, it lasted from 9:45 am to 10:20 am with a 15 minute break, which is all that was necessary at that stage. The investigation process had not concluded at that stage;

32.5 This is factually incorrect.

32.6 There is nothing to suggest that it was a convened as a pretext for any other purpose;

32.7 This allegation is not understood nor was it explained further in submissions. If it is meant to suggest that the Claimant was not able to put forward her explanation then that is factually incorrect.

32.8 I am satisfied that the Claimant was not called ‘a racist and a liar’ by Mr Kelly nor by anyone else. Mr Kelly’s evidence is supported by Mr Cox-Stone who was present. I find the evidence of both those witnesses to be reliable.

32.9 All relevant witnesses were interviewed and their evidence disclosed. There was no purpose in interviewing the Duty Manager who was not present at the time of the events. The list of witnesses interviewed is extensive.

32.10 Any other witness statements did not assist the Claimant’s case;

32.11 There was no prejudice caused by any delay;

32.12 Suspension was entirely appropriate in the circumstances;

32.13 Mr Kelly had no obligation to inform the Claimant of her data protection rights (whatever they might be) nor does the absence of it affect the fairness of the investigation;

32.14 The issue of breach of confidentiality was investigated and in any event it does not go to the issue of fairness;

32.15 The Claimant has at all material times accepted that the key part of the transcripts were accurate. There is a minor difference between two transcripts. The first transcript was as follows: “DG: “that fucking black little (or looking) bastard, she looked at me like that, so I went like that, couldn’t help it.” The material part from the second transcript is: “DG: “that fucking black little bastard… she looked at me like that, in the kitchen so I went like that, I couldn’t help it.” The material words remain the same. The differences are minor and inconsequential.

32.16 This is dealt with above

32.17 The allegation is factually incorrect. The Claimant was sent an invitation letter to the second investigatory meeting on 13 May 2016 as is apparent from page 163 of the hearing bundle. “Substantive” unfairness

[33]The principal issue in relation to substantive unfairness is whether the dismissal fell within a band of reasonable responses open to a reasonable employer. In that respect, I am satisfied that it did for the following reasons:-33.1 There is no doubt that this was a serious act of misconduct. Racist language at the workplace is rightly seen as unacceptable. The Claimant’s conduct clearly led to a complete breakdown in trust and confidence.

33.2 Neither the genuineness of the belief in misconduct nor the reasonableness is challenged. I am satisfied that the belief in misconduct was an honestly and reasonably held view.

33.3 I am satisfied the Respondent had reasonable grounds on which to base their beliefs. The final version of the transcript is accurate to the extent it is necessary to rely on it. Although no request was made to play the audio recording at the tribunal hearing the Claimant has not challenged the accuracy of the words used. The minor discrepancies are immaterial. At the disciplinary hearing the Claimant accepted that she had said at least the words: “that fucking…….black bastard”.

33.4 The Claimant accepted during the course of the disciplinary hearing that the recording sounded “dreadful” and “awful”.

33.5 I have already rejected the criticisms of the investigation. In my view this was a fair and reasonable investigation undertaken carefully with care and attention.

33.6 The Claimant’s suggestion that she was referring to a spider rather than a person is plainly ridiculous. Her words must be seen in their context. The context was that the Claimant had just been involved in a confrontation with Mrs Haslam and she was recounting the episode to her colleagues. Mrs Goddard was cross with Mrs Haslam and was demonstrating to her colleagues how she had dealt with the situation. The suggestion that Mrs Goddard was able to see the eyes of a spider and that the spider looked back at her is clearly unbelievable. The Claimant’s account lacks any credibility whatsoever.

33.7 Mrs Goddard made no reference to a spider when she was first shown a transcript.

33.8 The Respondents reasonably believed that the Claimant had colluded with Mrs Oswin and Mrs Barnett to invent a wholly implausible version of events to protect their friend.

33.9 There is no evidence that the audio recording had been tampered with or doctored by Mr Kelly, Mrs Haslam or anyone else on her behalf. The Claimant instructed her own expert (although she now denies that he was really an expert) who in fact agreed with the Respondent that this was not a doctored or tampered recording. The highest point of the Claimant’s case on this argument is that Mrs Haslam has a brother in Birmingham who owns an electrical shop. She suggests that it is possible he may have doctored the recording when Mrs Haslam had the phone. No further information or evidence has been offered as to this. I am satisfied that at no point have any officers of the Respondent tampered or doctored the audio evidence.

[34]In those circumstances I am satisfied that the decision to dismiss the Claimant was not substantively unfair.

[35]I do not find any procedural irregularity other than that which is conceded. In particular I do not find any breach of the ACAS Code of Practice which would trigger or require an uplift of the compensatory award.

[36]I was however initially concerned as to the delay in the appeal process and whether that also affected fairness. Ms Pinnock the appeal officer accepted that there were delays in the appeal and that these delays were ‘not ideal’. However, I also note that having lodged an appeal the Claimant chose not to attend the appeal hearing. Her stipulation was that her husband should be permitted to attend. When that was eventually agreed, and there was no reason for the Claimant not to attend the appeal hearing, she still failed to attend. In the circumstances any delay in dealing with the appeal is ultimately immaterial. Polkey

[37]I am satisfied that there is reliable evidence upon which it can be concluded that the Claimant would have been dismissed in any event regardless of the conceded procedural irregularities. I consider that the ‘safe date’ is in fact the actual date of dismissal in this case. The procedural irregularities would not have extended the date of dismissal. In those circumstances I consider it appropriate, on Polkey principles, to make no compensatory award. Contributory conduct

[38]Ms Masters submits that there should be a 100% reduction for contributory conduct in respect of both the basic and compensatory awards.

[39]Whilst 100% reductions for contributory conduct are comparatively rare, this is a case where the Claimant was indeed wholly to blame for her dismissal. She made racist and offensive comments at work. She then attempted to cover up her comments by colluding with colleagues to manufacture a false story. Breach of contract

[40]The Claimant’s conduct was clearly a repudiatory breach which the Respondent was entitled to accept and to dismiss summarily without notice. The Claimant had, through her conduct, demonstrated that she wholly disregarded the essential terms of her contract of employment in not complying with anti-discrimination legislation and dignity at work rules. Dismissal was justified. Notice pay was therefore correctly withheld. The complaint for breach of contract is therefore dismissed. Reinstatement and re-engagement

[42]An order for re-instatement or re-engagement is clearly not appropriate. It would not be practicable in the circumstances particularly where there has justifiably been a complete breakdown of trust and confidence caused by the Claimant’s conduct.