Mr J Conboy v The Secretary of State for Justice and HM Prison and Probation Service: 2600482/2023
EMPLOYMENT TRIBUNALS
Case No 2600482/2023
Between
Mr J ConboyClaimantThe Secretary of State for Justice (1) HM Prison and Probation Service (2)RespondentDate 27 September 2024
JUDGMENT
The claims against the second respondent are dismissed by agreement of the parties. RESERVED JUDGMENT The unanimous decision of the Employment Tribunal is:[1]The claim of automatically unfair dismissal fails and is dismissed.[2]The claim of unfair dismissal fails and is dismissed.[3]The claim of discrimination arising from disability fails and is dismissed.[4]The claim of disability related harassment fails and is dismissed.[5]The claim of wrongful dismissal is dismissed on a withdrawal by the Claimant.
REASONS
[1]The Claimant presented his claim to the Tribunal on 3 March 2023 following a period of early conciliation between 23 December 2022 and 3 February 2023. He was employed by the Respondent as a Prison Officer from 3 December 2018 until his dismissal with effect from 10 February 2023. He claims: Automatically unfair dismissal (trade union activity): Unfair dismissal: Discrimination arising from disability; and Harassment related to disability.[2]The Respondent submitted its response on 28 April 2024 and denies the claims. However, it conceded that the Claimant was a disabled person by reason of autism at the material time.
THE ISSUES
[3]The parties agreed the following issues for determination: 3.1. Claims Automatically Unfair Dismissal – Section 152 TULRCA. 3.1.1. Was the sole or principal reason for the Claimant’s dismissal his trade union activity, if so, was the Claimant automatically unfairly dismissed? 3.2. Unfair Dismissal 3.2.1. Has the Claimant been dismissed pursuant to section 95(1) Employment Rights Act 1996 (“ERA 1996”)? 3.2.2. Has the Respondent shown that the reason for the dismissal of the Claimant was one of the five potentially fair reasons for dismissal under sections 98(1) and (2) ERA 1996? The Respondent states that the reason for dismissal was misconduct. 3.2.3. If the reason for the dismissal was a potentially fair reason, did the Respondent act reasonably in dismissing the Claimant for that reason pursuant to section 98(4) ERA 1996? 3.2.4. Did the Respondent follow a fair process in dismissing the Claimant having regard to section 98(4) ERA 1996? 3.2.5. In accordance with the equity and substantial merits of the case, was dismissal within the range of reasonably responses that a reasonable employer in those circumstances and in that business might have adopted? 3.2.6. Has the Claimant suffered financial loss for which he should be award compensation for loss of earnings? If so, for what period? 3.3 Disability 3.3.1 The Respondent accepts that the Claimant was disabled by reason of autism within the meaning of section 6 of the EQA 2010 at the material time. 3.4 Discrimination arising from disability3.4.1 Has the Respondent treated the Claimant unfavourably because he struggles with sensory overload and difficulties with change arising in consequence of his disability.3.4.2 The unfavourable treatment alleged is his dismissal for the failing to lock the Alpha Wing Office door.3.4.3 Can the Respondent show that the treatment is a proportionate means of achieving the legitimate aim of security, health and safety and the management of staff conduct. 3.5 Disability Harassment3.5.1 Did the Respondent engage in unwanted conduct on 31 January 2023 when Mr Livingston asked the Claimant does “autism preclude you being able to lock the doors”.3.5.2 Did the conduct relate to the Claimant’s disability?3.5.3 Did any such unwanted conduct have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?
THE HEARING
[4]Prior to the hearing, the parties prepared a bundle of documents, written witness statements and an agreed list of issues. During the hearing additional documents were produced and admitted without opposition, save a further version of the Terms of Reference which was admitted on successful application.[5]On the first day, the Claimant withdrew his claim of wrongful dismissal having received notice pay. As such, we dismissed it on a withdrawal.
THE EVIDENCE
[6]We heard evidence from the Claimant whose evidence was, from time to time inconsistent. By way of example, the Claimant alleged that Mr Paul Yates, Governor at HMP Nottingham, had reduced monthly meetings with him and other members of the Police Officers Association (“POA”) to once every two months. However, in an email dated 21 May 2022, it was the Claimant who suggested reducing the monthly meetings. Furthermore, the Claimant was extremely reluctant to concede that he suggested it despite the documentary evidence proving he did, and only conceded after intervention by the Tribunal.[7]More generally, we agree with the Respondent’s assessment of the Claimant’s evidence in that he had not tried to deliberately mislead the Tribunal. Rather, at times he had an honest but mistaken recollection of events or, had attempted to try and fill gaps in his recollection where it was unclear.[8]We also heard evidence from Mr Geoff Willetts, Trade Union Representative, on behalf of the Claimant. We found his evidence to be broadly credible and he made concessions where appropriate.[9]For the Respondent we heard evidence from: Mr Paul Yates, Governor of HMP Nottingham and the dismissing officer. Mr Mark Livingston, Prison Group Director for the North Midlands at the time and the appeal officer.[10]We found the Respondent’s witnesses to be entirely credible. Their oral evidence was consistent with the contemporaneous documents where they existed and both witnesses made concessions as appropriate.[11]Accordingly, where there was a conflict in the evidence, we preferred that of the Respondent’s witnesses.
THE FACTS
[12]Our findings of fact are based on the material and evidence before us. Where there was any conflict, we resolved it on the balance of probabilities. The Respondent[13]HMP Nottingham (“the prison”) is a category B prison and holds dangerous prisoners.[14]The prisons duty is to the Courts and its purpose is to keep people held in custody securely and decently, security being a priority and underpinning everything it does.[15]It is a fundamental requirement of anyone working in a prison and part of the prison’s procedural and physical security that all locks must be locked and proved. Proving means that not only should a door be locked, but the staff member must also then test that they have locked it. Mr Yates described key management as “the bread and butter of someone working in a prison and is an area that we cannot compromise on”.[16]In the event of a security breach, numerous risks arise. The public is at a risk if a prisoner escapes or exits the prison without authorisation. In the case of an internal security breach, a prisoner could enter a prohibited area using the opportunity to assault staff, assault prisoners, engage in criminal activity, or engage in activity that disrupts the good order and discipline of the prison.[17]Prisoners are permitted out of their cells at key times in varying groups. During that time there are parts of the landing or wing that are out of bounds including staff offices, which can hold sensitive data. The security risks in a staff office include access to staff computers if they have been left unlocked and role boards with prisoners’ details and location on. The office also holds ACCT books which record sensitive information about prisoners who are at risk of self-harm which, if in the wrong hands, can be a safety risk to those prisoners and staff. Typically, when a prisoner gets into another prison cell, storeroom, or an office, they are usually trying to steal something or gain information hence why access to a staff office is taken seriously and considered a critical out of bounds areas. Mr Yates[18]Mr Yates became Governor of the prison in 2022. At his briefing with the Prison Group Director for North Midlands, one matter he was tasked with addressing the state of security in the prison. In particular, she wanted him to address the number of key lock and gate compromises and instructed him to address the issue with greater robustness that had been used previously.[19]Within two days of Mr Yates’ arrival, he issued a Governor’s Order. Such Orders are not issued lightly and only three or four times per year. However, he wanted to be transparent with staff that locking doors and gates was a priority for him. His first order was dated 16 February 2022 and provided: “All key holders who unlock any Class 1 or Class 2 Security door and gate are personally responsible for locking or securing Class 1 in the approved lock-back if this is appropriate. In other words, if you unlock the Class 1 or Class 2 Security gate and/or door you are solely responsible for relocking it and proving it. Key holders will immediately cease the practice of unlocking a security door, or gate and leaving the area. This will apply to all involved key holders without any exceptions. This Governor’s Order is with immediate effect” (page 86).[20]The Order was e-mailed to all staff and sent out as notices and cascaded down the management chain to ensure that all staff are aware of them. Mr Yates asked Wing Managers to ensure that Supervising officers referred to it in their daily morning and afternoon briefings for a couple of weeks after it’s issue to reinforce the message.[21]The prison also produces a weekly staff newsletter “Notts News”. In Mr Yates’ first newsletter, he highlighted the Order to ensure that all staff had seen and were aware of it (pages 87-91).[22]Mr Yates also emphasised key security in the Notts News dated 6 March 2022 as follows: “You will recall last week that I talked about safety, security and decency and the fact that these are red lines which I will not compromise on…” (page 105-12).[23]On 19 April 2022, the prison issued a staff information notice to confirm what action to take if they discovered an actual or suspected compromise of any key or key lock (page 114).[24]The following day, Mr Yates issued a further staff information notice as the number of key lock breaches was increasing. It provided: “There have been several recent communications about the need to check and prove gates and doors including Governor’s Order 01/2022 Unlocking and Locking of Security Doors and Gates (Class 1 and Class 2). Despite this the number of reported breaches is increasing. The breaches are happening in all parts of the prison and by all staff grades. From the date of this notice all door and gate breaches will be dealt with by the formal code of conduct investigation. We simply cannot continue to accept such basic security procedures not to be followed. The message is a simple one – if you unlocked the door/gate you must lock it and PROVE IT. A door that has been correctly proved cannot be left unlocked by mistake”. (page 115). The disciplinary procedure[25]The Respondent has a comprehensive conduct and discipline procedure (pages 348-432).[26]The procedure provides for a fast-track process which can be used in cases of alleged misconduct where i) dismissal is not an outcome, and ii) the member of staff accepts the finding of an investigation and does not wish to contest the charge. A formal disciplinary hearing is replaced as a fast-track hearing which means such cases can be resolved sooner.[27]The section on suspension provides: “In some cases it will not be appropriate for a member of staff to remain on their normal duties or at said place of work pending an investigation or disciplinary hearing. In such cases, the appropriate manager may wish to arrange alternative duties or a period of detached duty pending the outcome of the investigation and/or any subsequent disciplinary action. Alternative duties within an establishment or headquarters group or detached duties must always be considered as an alternative to suspension. Suspension must only be used in exceptional circumstances where there is a particular business risk or risk to an individual that cannot be mitigated through alternative duty or detached duty arrangements…” (page 361).[28]The policy provides guidance on action post-investigation. The section “proceeding to formal disciplinary action” provides: “If the commissioning manager decides to proceed to formal disciplinary action, they must firstly determine whether the alleged misconduct constitutes misconduct or gross misconduct. Gross misconduct is defined as misconduct that is so serious as may make any further relationship and trust between the Service and the member of the staff concerned impossible. In determining what level of misconduct the alleged misconduct constitutes, the Commissioning Manager must take in to account the member of staff’s current disciplinary record. If the member of staff is subject to an existing live disciplinary penalty for the same type of misconduct, the Commissioning Manager will need to consider whether an additional offence of general misconduct would constitute gross misconduct. It is for the Commissioning Manager to consider the nature of the alleged offence and to determine what type of disciplinary penalty the alleged misconduct would attract if found proven. The type of misconduct and the disciplinary penalties being considered will determine who can conduct the hearing…”[29]The section “disciplinary hearing – conclusions” provides: “If the alleged misconduct is found proven, the person conducting the hearing must, before deciding what action to take in the light of the hearing, allow the member of staff to offer mitigation, allowing an adjournment if requested, and must also take into account: The member of staff’s disciplinary record (disregarding any spent penalties), general record, position and length of service: Any mitigation circumstances, e.g. personal, domestic or social; The nature and seriousness of the misconduct involved: Any advice given by a professional or specialist manager if present”.[30]The policy also provides examples of misconduct. Examples under the heading “Performance of Duties” provides: “Action or negligence likely to endanger the security of an establishment, including contributing to the escape of a prisoner; Breaches of security; Action or negligence in the course of duty which causes, or which could have caused, or contributes to loss, damage or injury to the Service or individuals; Failure to obey a lawful and reasonable order or written instruction…”[31]The section headed “Gross Misconduct” provides: “Serious cases of general misconduct may also amount to gross misconduct if they are of a nature that makes any further relationship and trust between NOMS and a member of staff concerned untenable. Furthermore, a repeat offence of general misconduct during a review period may also amount to a charge of gross misconduct”.[32]In practice, a Prison Officer can be issued with multiple final written warnings if they arise from different types of misconduct. The Respondent can only dismiss on the back of a final written warning if the subsequent misconduct falls within the same category of misconduct. The POA[33]The POA is the largest recognised union for staff at the prison. Mr Yates was keen to maintain a good relationship with the union and, despite disagreements, considered it a useful set of eyes and ears for him and a “critical friend”. The Claimant[34]The Claimant commenced employment as a Prison Officer on 3 December 2018. He was subject to a period of probation during which he was issued with a first written warning because of issues related to his performance. One such issue was leaving a gate unlocked (pages 67-68).[35]On 22 August 2019, the Claimant left Suite A1 office door unsecured. This was his second key lock compromise. At an initial meeting chaired by CM Bowskill, he was reminded of the importance of securing all gates and doors (page 69). In consequence, he was issued with a probation final written warning (pages 70- 71).[36]After successful completion of the probationary period, it is the Respondent’s policy that any disciplinary action is disregarded, and the slate is effectively wiped clean. As such, when the Claimant became a permanent Prison Officer he did so with a clean disciplinary record.[37]In 2019, the Claimant was diagnosed with autism. In his witness statement he described the resultant symptoms as experiencing motor impairments: normal day-to-day activities taking him longer: issues with communication and reading social queues: appearing blunt: taking comments literally; and impacting on social situations and the interpretation of what people mean or are feeling, and the ability to respond accordingly. He also says he is phased by changes to routines or the way in which things are carried out and unexpected events and is hypersensitive especially in relation to noise.[38]On 25 November 2019, the Claimant attended an appointment with Occupational Health. The assessing physician confirmed that in his opinion, the Claimant remained fit for the full duties of his role as a Prison Officer. In response to the managers question “Is Joseph suitable/fit for the demanding role of a Prison Officer with this condition?” the physician replied: “I cannot answer this question at present but would hope that with appropriate support he will be able to manage the role” (pages 435-437).[39]Following the Occupational Health consultation, the Claimant met with CM Lambert, B Wing Manager to discuss the report. She followed up their meeting with a letter dated 20 March 2020 confirming the following: “You are to contact your doctor and discuss the findings with them an (sic) support they can offer or signpost to you towards… It has been agreed that you will be allocated to a smaller wing whilst you continue to embed your knowledge and skills as a Prison Officer. Please be aware though, that this will not preclude you from occasional shifts on B–Wing or returning to B–Wing on a permanent basis in the future. If you need support with any coping strategies please let me know and I will assist you where I can” (pages 72-73).[40]On 13 December 2021, the Claimant was issued with a final written warning for unprofessional conduct, mainly using unnecessary force against a prisoner on A Wing. This was dealt with under the fast-track procedure and the Claimant did not appeal the decision. The final written warning was effective from 29 October 2021 and was valid for 12 months (pages 74-75). The Claimant’s appointment as Branch Chair of the POA[41]The Claimant was appointed Branch Chair of the POA in December 2021 and attended POA/Senior Management meetings. He maintained a good relationship with Mr Yates, demonstrated by the fact he sent Mr Yates a postcard from the POA conference in Eastbourne in May 2022.[42]On 17 May 2022, a monthly POA/Senior Management meeting was scheduled but no one from the POA attended for the second month in a row. Mr Yates emailed the Claimant expressing his disappointment and asked: “Can I check if you still want to meet with the Deputy Governor and myself going ahead? I would like to continue the meetings if only to ensure that we continue to have a good relationship and constant dialogue” (pages 117-118).[43]The Claimant replied saying: “I am happy to make the meetings once every two months. This would give people more time to progress the action points. What do you think?”.[44]In response, Mr Yates said: “Yes this is fine. We will also speak to Detail to make sure that you and Jordan are detailed to attend if that suits you?”.[45]The Claimant replied: “Perfect, thank you!”.[46]As such, it was the Claimant who suggested that the meetings took place every two months, not Mr Yates. The POA dispute[47]The Respondent has profiles for minimum safe operating levels. In brief, this is a formal system scheduling where staff go, at what grade, in what numbers and at what times of the day. From time to time, prisons embark on a re-profiling exercise during which the Governor reviews and proposes changes to the profiles if considered appropriate. HMPS has a Working Time Directive shift pattern which is a historical agreement between HMPS and the unions and is the only pattern that can be imposed by Governors.[48]The POA are involved in the reprofiling process by way of consultation. Mr Yates first raised it with them in February 2022. Mr Yates did not threaten to put staff on a 40-hour working week under the Directive if the new profiles were not agreed. Rather, he felt it was simply a matter of explaining all the options should they get to a position where they could not agree.[49]The POA did not agree with the proposed profiles and, on 23 May 2022, POA submitted a “failure to agree” e-mail. The Deputy Governor arranged to meet the POA on 17 June 2022 to discuss the matter, but agreement was not reached.[50]On 24 June 2022, the Claimant submitted a formal dispute registration to HMPS Employee Relations (“ER”) in London who deal with disputes not resolved at a local level. When such a dispute is registered, the local prison often has no further involvement albeit sometimes ER will arbitrate and involve it in that process. Disputes are not uncommon and can arise as often as monthly. Mr Yates did not take the dispute personally as it was part and parcel of his role. The Claimant on the other hand conflated its significance because it was his first dispute in the role of Branch Chair.[51]Despite the dispute, Mr Yates continued to deal with the Claimant in the same manner as always and did not refuse to deal with him as alleged. From Mr Yates’ perspective, their relationship remained on good terms. Ultimately, Mr Yates’ proposed profiles were not implemented but he did not hold the Claimant accountable, nor did it cause him any ill feeling.[52]On 19 September 2022, the POA’s secretary stood down from his position citing the Claimant’s behaviour as the trigger. He e-mailed Mr Yates of accusing the Claimant of causing damage by advancing his personal views rather than that of the POA Committee. Mr Yates responded expressing his disappointment about the secretary’s decision saying: “You are a loss to the POA and Prison and your calm, reflective and balanced viewpoint has been something that we have both come to value and trust. We have always felt that you hold both the views of your members and of the best interests of the prison at the heart of your contributions. Firstly, I wondered if there is anything that we can do to assist and ultimately change your mind? I am happy to have a chat if that would help at all? Just pop up and see me when it suits…” (page 185).[53]Mr Yates would have responded in similar terms to any committee member standing down, including the Claimant. He did not become embroiled in whether the secretary’s reason for resigning bore any truth, nor did he subsequently say that the Claimant’s behaviour had led to the resignation of “the only member of committee who had any talent”. The Incident on 1 June 2022[54]On 1 June 2022, the Claimant was working on Alpha Wing unlocking prisoners alone so they could attend workshops and education. On realising that he had received an incomplete list of prisoners, he rushed back to the office to obtain a complete one and on leaving the office, he left the door unlocked. In consequence, a prisoner was able to enter the office and take a DAB radio. In turn, the Wing had to be locked down for circa 45 minutes whilst targeted searches of prisoners were undertaken, causing disruption for staff and prisoners alike who were denied association and exercise. The incident was reported to the Prison Group Director and National Incidents Management Unit.[55]Mr Yates became aware of the incident via the daily briefing sheet. He had to decide whether to suspend the Claimant pending the outcome of an investigation. Ultimately, he decided that the Claimant could proceed with his detached duties at an alternative prison for which he had already successfully applied. With the benefit of hindsight, Mr Yates would have taken the decision to suspend him but at the time of making the decision, he had scant information and was not aware that the Claimant had had previous warnings relating to key lock compromises. The investigation[56]As per the disciplinary policy, the terms of reference were completed by the Deputy Governor on 13 June 2022. She appointed Ms Zijlstra, Head of Security and Intelligence, to investigate.[57]The terms of reference confirmed that the alleged misconduct was a ‘breach of security’ which fell under the general heading of “performance and duties”. It was not a “double charge”, and the Claimant had the Terms of Reference from the outset of the investigation.[58]Ms Zijlstra informed the Claimant that she had been appointed to investigate and held an investigatory meeting with him on 30 June 2022, within which he admitted the misconduct. The Claimant acknowledged that the Wing diaries and ACCT books were held in the office.[59]The Claimant expressed his regret and explained that he had only been given a partial list of prisoners who required unlocking. On noticing, he quickly ran down the stairs to get the remainder of the list from the Wing Office and neglected to shut the door and lock it. He said: “We were lucky that the prisoners only took a radio. You don’t know what their motives are but these prisoners luckily only took a radio, it could have been far worse” (pages 131-137).[60]Ms Zijlstra completed her investigation report on 11 July 2022 and recommended that the matter proceed to disciplinary hearing (pages 142-147). The disciplinary hearing[61]Mr Yates was the appointed Disciplinary Officer and, when reviewing the Terms of Reference, noticed that the box “Senior Trade Union Representative” had not been ticked. Accordingly, he asked the Deputy Governor to amend them with the boxed ticked. This was the only amendment made. The Deputy Governor emailed the amended Terms to the Claimant and Mr Willetts on 21 July 2022 so both had sight of it in advance of the hearing (page 152a).[62]On 3 August 2022, Mr Yates wrote to the Claimant confirming that he would conduct the disciplinary hearing and enclosed a copy of the investigation report. Mr Yates confirmed that: “If proven these allegations would constitute gross misconduct”. He also confirmed that he could decide to take formal action up to and including dismissal (pages 156-157).[63]On 11 August 2022, Mr Yates wrote to the Claimant inviting him to a disciplinary hearing on 7 September 2022. He confirmed in the letter that: “At the hearing, the evidence will be presented and then you will have an opportunity to state your case. I will then think about what I have seen and heard, and I will decide an appropriate course of action or disciplinary penalty – these were outlined in my previous letter…” (pages 163-164).[64]Mr Willetts was unable to accompany the Claimant on 7 September 2022 and, ultimately the hearing proceeded on 6 October 2022 (pages 181-182). At the outset of the hearing, Mr Yates confirmed the range of disciplinary sanctions available to him from no further action to “gross misconduct and anything else in between”. Mr Willetts acknowledged this and did not express surprise or object to the potential outcomes. Mr Willets also confirmed that they had had sufficient time to prepare for the hearing and received all the documentation save a “cover” which was provided at the hearing.[65]Mr Yates also explained that the Terms of Reference had been amended to include the box ticked that the Claimant was a Senior Trade Union Representative which Mr Conboy acknowledged. At no point did the Claimant or Mr Willetts complain that “performance of duty” was not in the original terms. Rather, the Claimant commented: “I think the allegations are largely true, yeh”.[66]Mr Willetts also confirmed that the Claimant accepted that the allegations were true but wanted Mr Yates to consider mitigation. He also asserted that the charge of gross misconduct was too severe.[67]Mr Yates addressed the fact that the Claimant was already on a final written warning. Mr Willetts’ position was that it was not fair to link the current misconduct to the Claimant’s final written warning which in his view fell within the category of performance of duties.[68]In terms of mitigation, the Claimant said that he had not been sleeping well at the time of the incident due to his young son who was under two years old. At no point did he raise his autism as a factor.[69]After an adjournment, Mr Yates confirmed that he had found the allegations proven. In his deliberations, he considered that the Claimant was already on a live final written warning linked to performance of duties. He had regard to the fact that the Claimant was rushing because of the partial list but considered it irrelevant to the matter of the door not being locked and proved. Mr Yates felt that it was incumbent on him to have regard to the live warning because use of force and locking doors directly related to the role of Prison Officer and performance of duties.[70]Mr Yates disregarded the Claimant’s warnings during his probationary period. However, when considering the Claimant’s previous behaviour, the fact that the Claimant had received a warning in the past for a key lock compromise caused him concern because it was repeat behaviour. Given the seriousness of leaving the office door unlocked and subsequent consequences, along with the fact that the Claimant was already on a live final written warning, Mr Yates concluded: “I am satisfied you have failed in you performance of duties. I have lost confidence and trust in you and your ability to competently discharge your role as a Prison Officer. Your actions caused a security breach and further contributed to a significant ongoing problem in the prison around poor key, gate and door security. Your inaction had a disruptive impact across the entire Wing and the regime of the wider prison. In addition to this your actions took place while you already had a “live” final written warning for previous misconduct. In my adjournment period, I had serious consideration as to whether the trust between you and I was irrevocably broken and could ever be rebuilt. I also applied the higher balance of probability test and am satisfied that your combined actions, the breach of security, lack of understanding, despite several briefings and notices from me on the subject, limited contrition and remorse and lack of competence are all relevant aggravating factors. Similarly, I considered very carefully whether a decision to issue a further final written warning or other disciplinary outcome would be appropriate and concluded that it would not. This is because the allegation happened only 6 months into the final written warning period, and I can find no reason to disregard the previous final written warning. As a result of the accumulative aggravating factors, notwithstanding my loss of confidence in your capability to be responsible for keys and to maintain security, I have dismissed you from the Prison Service on the grounds of gross misconduct. This means your last day in the Service is 6 October 2022” (pages 231-234). The Appeal[71]The Claimant appealed the decision to dismiss him by way of letter dated 27 October 2022. The Claimant raised several grounds of appeal namely procedural irregularities, his role as Branch Chair of POA, the penalty was unduly severe. He also added his personal reflections. Appeal ground – procedural irregularities[72]The Claimant alleged that the original Terms of Reference were solely for ‘breach of security’ and that performance of duties had been added subsequently by Mr Yates to justify his dismissal on the back of his live final written warning.[73]In relation to his live warning, the Claimant pointed out that it was possible to be on more than one final written warning so long as they were for different offences. In his view, the incident on 1 June 2022 was a stand-alone offence which should not be linked to the previous warning for performance of duties. Appeal ground - disability[74]In terms of disability, the Claimant complained that the reasonable adjustments agreed in 2019 were not being upheld and he should not have been on A-Wing given his disability. However, he did not say that he had become hypersensitive because of the events of the day.[75]In respect of Mr Yates’ decision to dismiss he said: “People who are not experienced with dealing with autistic people often make incorrect inferences into the intentions and motivations of people with autism, this was a classic example. Mr Yates perception of me as being hostile, militant, and disruptive is incorrect and almost certainly caused by prejudice on his part. I hope this is an example of unconscious bias and that he is not intentionally discriminated against me because of my disability”. Appeal ground - POA[76]The Claimant submitted that a sanction of summary dismissal was overly harsh and that Mr Yates: “Allowed his frustration against some of the actions of the POA Branch Committee to bias his judgment and has used my leaving of the A-Wing Office door open as an opportunity to enact revenge against the branch and eject me from the business so that he would get a more pliable POA Chair”.[77]The Claimant also referred to inconsistent treatment of other Prison Officers who had been involved in security breaches and apologised to everyone who was affected by the incident (pages 269-274). The appeal hearing[78]Prior to the hearing, Mr Willetts had submitted a Freedom of Information (“FOI”) request to obtain disciplinary outcomes of Prison Officers involved in security breaches (pages 295-296). The information disclosed that no Prison Officer had been dismissed because of a breach of security. However, the information did not disclose whether those Officers were already on a final written warning or details of the breach itself. Furthermore, the disciplinaries all occurred prior to Mr Yates becoming Governor and the reinforcement of the importance of security.[79]Mr Livingston was appointed to chair the appeal which took place on 31 January 2023. The Claimant was again represented by Mr Willetts. During the hearing, the Claimant had full opportunity to have his say and focussed on his two main grounds of appeal namely that the disciplinary proceedings were unfair and breached the rules of natural justice and the penalty of gross misconduct was too severe.[80]In the hearing the Claimant said that the A-Wing Office had been clear, so no significant damage had been caused by the key lock compromise. He also raised the union issue but without substance. He merely mentioned that he got on better with the previous Governor than Mr Yates.[81]In respect of his autism, the Claimant said that he should not have been on A Wing in the first place. Mr Livingston asked him whether autism precluded him from locking doors to which he replied that it would not. Mr Livingston did not ask the question in a sarcastic manner as alleged, rather as a natural part of his enquiry into that ground of appeal. The Claimant did not become upset nor did he or Mr Willetts object to this question or the way in which it was asked. There was no break immediately thereafter as suggested in evidence.[82]Mr Livingston closed the hearing and confirmed that he would deliver the outcome within five days. Thereafter, Mr Willetts emailed a table of other misconducts at the prison following the FOI request (pages 259-296). The appeal outcome[83]On considering the appeal, Mr Livingston did not feel that the Claimant’s actions in isolation justified dismissal. However, he considered that there was a course of conduct which was sufficient to uphold the penalty.[84]Mr Livingston was satisfied that the investigation was sufficient, and the rules of natural justice had not been breached. He concluded that if the Claimant had not been on a final written warning, he would have probably overturned the dismissal.[85]However, given that the final written warning was for excessive use of force and the Claimant had previously been warned about locking doors, the incident on 1 June 2022 was not isolated. As such, Mr Livingston was not confident that the Claimant could discharge his duties diligently and competently. He did not consider that the information provided by Mr Willetts in relation to other offences was particularly helpful given the lack of relevant information.[86]Ultimately, he concluded that summary dismissal was not an appropriate sanction and felt that the charges against the Claimant should have been levelled as serious misconduct rather than gross misconduct. Consequently, he upheld the decision to dismiss the Claimant as an appropriate sanction but changed it to dismissal with notice and confirmed that the Claimant’s last day of service would be 10 February 2023 (pages 298-299).[87]The Claimant was paid up to and including his appeal so received his notice pay.
THE LAW
[88]We were referred and have regard to the following cases relevant to the issues: Kuzel v Roche Products Limited [2008] IRLR 530: Graham v Security of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903: East Berkshire Health Authority v Matadeen [1992] IRLR 336: York City Council v Grosset [2018] IRLR 746: iForce v Wood UKEAT/0167/18 [3 January 2019 unreported]: Birtenshaw v Oldfield [2019] IRLR 946: Cadman v Health and Safety Executive [2005] ICR 1546: Richmond Pharmacology v Dhaliwal [2009] IRLR 336 (EAT): Grant v HM Land Registry [2011] EWCA Civ 769: Driskel v Peninsula Business Services Limited [2000] IRLR 151 (EAT); and Polkey v Dayton Services Limited [1987] IRLR 503.[89]Section 98 of the Employment Rights Act provides: “(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— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee,(c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.” (3)In subsection (2)(a)— (a)“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b)“qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (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.[90]Section 152 of the Trade Union and Labour Relations Consolidation Act 1992 provides: “(1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—(a) was, or proposed to become, a member of an independent trade union,(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, had made use, or proposed to make use, of trade union services at an appropriate time, had failed to accept an offer made in contravention of section 145A or 145B, or(c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member. (2) In subsection “an appropriate time” means— (a) a time outside the employee’s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work. (2A) In this section— (a) “trade union services” means services made available to the employee by an independent trade union by virtue of his membership of the union, and (b) references to an employee’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member. (2B) Where the reason or one of the reasons for the dismissal was that an independent trade union (with or without the employee’s consent) raised a matter on behalf of the employee as one of its members, the reason shall be treated as falling within subsection (1)(ba). (3) Where the reason, or one of the reasons, for the dismissal was— (a) the employee’s refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, he must make one or more payments, or (b) his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment, the reason shall be treated as falling within subsection (1)(c). (4) References in this section to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union or of one of a number of particular branches or sections of that trade union, (5) References in this section— (a)to taking part in the activities of a trade union, and (b)to services made available by a trade union by virtue of membership of the union, shall be construed in accordance with subsection (4).[91]Section 15 of the Equality Act 2010 provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[92]Section 26 of the Equality Act 2010 provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ….. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. DISCUSSIONS AND CONCLUSIONS Harassment[93]We find as fact that Mr Livingston did not make the comment: “Does your autism preclude you from being able to lock doors” in a sarcastic manner as alleged.[94]In evidence, the Claimant said that after this comment was made, he was upset and asked for a break. However, there is simply no evidence of that in the abridged minutes (pages 293-294) or the automated minutes (pages 307 – 338). Mr Livingston did not recall there being a break either.[95]We accept Mr Livingston’s evidence on the allegation as reliable. We are satisfied that the question was properly asked in the context of the Claimant raising disability in the appeal and did not amount to unwanted conduct having the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Moreover, we are satisfied that if he had, the Claimant, and more particularly Mr Willetts as an experienced senior trade union official, would certainly have raised it, particularly given disability was a live issue in the appeal hearing.[96]As such, the claim of harassment related to disability fails and is dismissed. Discrimination Arising from Disability[97]The unfavourable treatment relied on by the Claimant is dismissal. There is no dispute that the Claimant was dismissed.[98]The pleaded ‘something’ arising from disability was the Claimant suffering with sensory overload and finding it difficult to manage changes to routine. However, the Respondent submits that the Claimant has incorrectly pleaded the ‘something’, and it was, rather, the Claimant failing to lock the office door.[99]On either submission, we must be satisfied that there is a causative link between the Claimant’s disability and the ‘something’, namely his conduct on 1 June 2022.[100]We have had regard to the fact that the Claimant confirmed at the appeal hearing that his autism did not affect his ability to lock doors. This is consistent with him having failed to raise alleged sensory overload or difficulty in managing a change of regime during the disciplinary or appeal process.[101]We are satisfied that if the Claimant’s autism had the effects on him as now alleged, either he or Mr Willetts would have raised it in the face of dismissal, more so given that i) they are both trade union officials (with Mr Willetts holding a senior role with many years’ experience) and ii) they had put their minds to the question of disability in relation to reasonable adjustments.[102]Furthermore, the Claimant has not provided any medical evidence to support his assertion of those effects more generally, nor has he persuaded us that he was suffering from them on 1 June 2022.[103]Given the Claimant’s admission that his autism did not affect his ability to lock doors and the lack of persuasive evidence that the Claimant was suffering with effects on 1 June 2022, we are satisfied that regardless of the ‘something’, there was no link between his disability and failure to lock the door.[104]Accordingly, the Claimant’s claim of discrimination arising from disability fails. Automatically Unfair Dismissal[105]The Claimant submits that the main or principal reason for his dismissal was his trade union activity. In deliberating this element of the claim, we preferred the evidence of Mr Yates over the Claimant. There is simply no evidence to suggest that Mr Yates dismissed the Claimant for a reason relating to his position of Branch Chair or the registering of a dispute. We accept Mr Yates’s position that the dispute was part and parcel of the relationship between himself and the POA and he was unphased by it. We also accept that the Claimant conflated its importance given it was his first dispute in the role of Chair.[106]We are satisfied that the Claimant and Mr Yates had a good working relationship, hence the Claimant sending Mr Yates a postcard from the conference at Eastbourne. Indeed, in cross examination the Claimant was unable to provide any examples of the friction he subsequently alleges.[107]Overall, we did not find the Claimant’s evidence on this element of the claim credible, particularly given his allegation that Mr Yates had reduced the monthly meetings with POA to every two months when the documentary evidence conclusively evidences that this was a suggestion put forward by the Claimant.[108]We are satisfied that the Claimant’s Trade Union activity had no bearing whatsoever on the decision to dismiss him and his claim of automatically unfair dismissal fails and is dismissed. Unfair Dismissal[109]There is no dispute that the Claimant was dismissed or that it was for the potentially fair reason of conduct. The Claimant accepted in evidence that his actions on 1 June 2022 warranted the investigation, during which he admitted the misconduct.[110]The Claimant was not suspended but rather permitted to proceed with his detached duties. We accept Mr Yates’ evidence that in hindsight he would have suspended him, but at the point of making the decision he was not aware that the Claimant was already on a final written warning and had previously breached security. We are satisfied that this did not undermine the seriousness of the allegation against the Claimant and fell squarely within the Respondent’s disciplinary procedure which provides suspension should be used as a last resort.[111]We have found as fact that the Claimant was provided with the Terms of Reference at the outset of the disciplinary process which clearly stated that the charges against him were ‘breach of security’ and ‘performance of duties’. The only change to those Terms was the ticking of the box that he was a trade union representative. We do not accept his evidence that the original Terms originally contained only the charge of ‘breach of security’ and, when it was subsequently updated to reflect his status as a union official, the Respondent added ‘performance of duties’ to enable it to dismiss on the back of a final written warning.[112]Given that the Claimant admitted the charges and was given the opportunity in the investigation to advance mitigating circumstances, we are satisfied that the investigation was within the range of reasonable responses and that the Respondent had a reasonable belief that the misconduct had taken place.[113]The Claimant was invited to a disciplinary hearing and given the right to be accompanied. We are satisfied that he received all the relevant information and knew the charges against him in advance of the hearing, including that a possible outcome might be summary dismissal. If he had not, Mr Willetts would undoubtedly have raised it.[114]During this hearing, the Claimant and Mr Willetts gave evidence that they held concerns about Mr Yates hearing the disciplinary, suggesting that he could not be impartial. However, they did not request that he be replaced because there is no express provision in disciplinary procedure to do so. Despite the lack of express provision, we are satisfied that if the Claimant had concerns at the time, either he or Mr Willetts would have raised them, more so Mr Willetts given his trade union seniority and experience. Indeed, Mr Yates gave evidence that he had agreed to stand down from hearing a disciplinary previously despite considering there were no grounds to do so.[115]At the disciplinary hearing itself, the Claimant was given full opportunity to have his say. However, Mr Yates considered that his actions were so serious that there could be no trust between him and the Claimant in their working relationship going forward and took the decision to dismiss for gross misconduct.[116]Mr Yates took into account the fact that the Claimant was on a final written warning, and we considered that he acted reasonably in doing so. The Claimant argued vehemently that Mr Yates should not have dismissed on the back of that given that the ‘offence’ was different. However, we are satisfied that Mr Yates acted within the terms of the disciplinary procedure in that this was a further breach of performance of duty.[117]We do not consider that the argument of inconsistent treatment holds any weight. The information provided by Mr Willetts is scant in detail, particularly whether those subject to disciplinary proceedings were already on a final written warning. Furthermore, there is no detail about the seriousness of the key lock compromise and subsequent consequences and different penalties are awarded for the same offence. As such, they cannot be used as a valid comparison. In the Claimant’s case, the wing had to be shut down, prisoners were searched, and they missed their association and/or education. The consequences could have been very serious had any prisoner accessed personal sensitive information and placed both staff and prisoners at risk of harm.[118]At the appeal stage, Mr Livingston fully considered the Claimant’s grounds of appeal evidenced by his decision to overturn the decision to dismiss summarily to dismissal with notice.[119]Given that the Claimant was dismissed with notice for serious misconduct on the back of a final written warning we are satisfied that the decision to dismiss him fell within the range of reasonable responses, more so given the Claimant’s admission of the misconduct.[120]We consider the procedure followed also fell within the range of reasonable responses. The Claimant attended an investigation meeting, was given full notice of the disciplinary hearing, which was rearranged to accommodate his representative, he was accompanied at both hearings and had the right to appeal which he exercised.[121]Accordingly, the claim of unfair dismissal fails and is dismissed.