Mr J S Johal v Northern Lincolnshire and Goole NHS Foundation Trust: 2600557/2024

EMPLOYMENT TRIBUNALS

Case No 2600557/2024

Between

Mr J S JohalClaimant

Northern Lincolnshire and Goole NHS Foundation TrustRespondent

Before

Employment Judge Hutchinson

Members

Mr G Edmondson

Mr J Purkis

Mr N Brockley (instructed by Counsel) for claimant

Mr J Boyd (instructed by Counsel) for respondent

Date 16 July 2026

JUDGMENT

[1]The claim of race discrimination is withdrawn and dismissed.

[2]The unanimous judgment of the Tribunal is that the Claimant was unfairly dismissed. His claim succeeds.

[3]Remedy will be dealt with at a hearing on 10 August 2026.

REASONS

[1]The Claimant commenced ACAS early conciliation on 13 February 2024, and a certificate was issued on 28 February 2024. He issued his claim on 28 March 2024.

[2]His claim was for:(1) Unfair dismissal; and

(2) Race discrimination.

[3]He had been employed by the Respondent at the time of his dismissal as Interim Joint Director of Estates and Facilities. He had commenced his employment on 17 July 2006, and was dismissed for alleged gross misconduct on 1 December 2023.

[4]On the first morning of the hearing the Claimant withdrew his claims of race discrimination and they were dismissed. The only matter we therefore had to deal with was a claim of unfair dismissal under section 94 Employment Rights Act 1996 (ERA).

[5]The issues for the Tribunal were therefore, as follows:(1) What was the reason for the dismissal? The burden is upon the Respondent to establish that it was a potentially fair reason. In this case they say that the reason related to his conduct.

(2) If they establish that conduct was the reason for the dismissal, we go on to consider the fairness test as set out in section 98(4) ERA, which says: “(a) 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.”

[6]The fairness test involved deciding whether the Respondent acted reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant. In particular:(1) Did the Respondent genuinely believe the Claimant was guilty of the misconduct alleged;

(2) Did the Respondent have reasonable grounds to believe the Claimant had committed the act of misconduct;

(3) At the time that they formed that belief had they carried out a reasonable investigation;

(4) Was dismissal in the range of reasonable responses open to the Respondent; and

(5) In reaching that decision, did the Respondent follow a fair procedure.

[7]The procedure was challenged by the Claimant as follows:(1) The Respondent had not followed its own constitution of disciplinary policy and procedure. The Case Manager, Lee Bond (Mr Bond), was at the same level as the Claimant and was not independent or of appropriate seniority to the Claimant;

(2) The appointed investigating officer, Sally Stevenson (Ms Stevenson) was not of the appropriate seniority or independence, and she reported directly to Mr Bond. This was a breach of the trust disciplinary policy;

(3) The chair of the disciplinary hearing, Shaun Stacey (Mr Stacey), was the Claimant’s peer and did not have the authority to dismiss the Claimant, breaching the trust constitution;

(4) Throughout the investigation disciplinary process and subsequent appeal process, the Respondent failed to follow the Just and Learning Framework.

[8]If the Tribunal find that the Respondent did not undertake a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when.

[9]If the dismissal was unfair did the Claimant contribute to the dismissal by culpable conduct.

Evidence

[10]The Tribunal heard evidence from the following witnesses for the Respondent:(1) Sally Stevenson (Ms Stevenson), Assistant Director of Finance Compliance and Counter fraud (Investigating Officer);

(2) Lee Bond (Mr Bond), Chief Financial Officer (Case Manager);

(3) Shaun Stacey (Mr Stacey), Group Chief Delivery Officer (retired) (Dismissing Officer); and

(4) Jonathan Lofthouse, Group Chief Executive (Appeal Officer).

[11]We also heard from the Claimant.

[12]Where I refer to page numbers it is from the agreed bundle of documents.

[13]There is little dispute about the facts pertinent to the time. For the avoidance of doubt though, we did believe the Claimant’s evidence and did not believe that he tried to mislead the Tribunal in any way.

The Facts

[14]Mr Johal commenced his employment with the Respondent on 17 July 2006. When he commenced his employment, he was engaged as Transport Manager. At the time of his dismissal, he was employed as Interim Joint Director of Estates and Facilities and was appointed to this role on 7 June 2023. The letter of appointment is at page 532. His secondment to this role was effective from 1 June 2023 and it was envisaged that this was continue until the establishment of a substantive role as Joint Director of Estates and Facilities.

[15]His time was to be split 50/50 between North Lincolnshire and Goole NHS Foundation Trust (NLAG) and Hull University Teaching Hospitals NHS Trust (HUTH).

[16]His salary was increased at the time to £137,000 per annum.

[17]He was to remain an employee and non-voting member of the board of NLAG and his formal line manager and accountability was to the Interim CEO for the element of his role relating to NLAG. For the element of his role relating to HUTH, his line manager was Mr Bond, Deputy Chief Executive.

[18]He remained subject to his contract of employment which he signed on 20 June 2019, (pages 482-491). The contract refers to him as being an Executive Director.

[19]Under clause 15 of the contract, it states that any disciplinary action would be taken in accordance with the trust general disciplinary rules and procedures.

[20]Clause 15.2 states: “In accordance with the trust policy, the authority to terminate your employment is held by the Chief Executive.”

[21]The disciplinary policy is at pages 272-306.

[22]The policy and procedure for the Trust lease car scheme is at pages 352-379.

[23]We were referred to the “Just and Learning Framework Guidance”, which is at pages 433-40. The framework says: “1.4….. Seeks to achieve individual and organisational learning, with an emphasis on future accountability, through the support, engagement, and motivation of those involved in issues and concerns.”

[24]The principles include: “2.1 A compassionate management approach, where everyone’s needs are considered, wellbeing is prioritised and continually assessed. It is acknowledged that “in any adverse event or situation, there is often more than one individual impacted. Everyone involved in the issue can be hurt by it, including those directly involved, those raising concerns, those witnessing incidents and those responsible for a process. 2.2 Most employees do not intentionally get things wrong or intentionally hurt others. Our people work in difficult and challenging environments, often under pressure and sometimes adverse events and situations highlight external/personal contributing factors that may require understanding and support.”

[25]We were also referred to the Baroness Dido Harding Guidance which is at pages 477-9 and the additional guidance relating to the management and oversight of local investigation and disciplinary procedures at pages 480-1. The guidance related to a tragic event that took place in February 2016, when a person took his own life after being subjected to an investigation and disciplinary procedure.

[26]Until Mr Johal’s dismissal, he had never been subject to any disciplinary action and for 17 ½ years, he was a loyal, hardworking and trusted employee.

[27]NLAG had been established in 2007. The trust has a legally binding constitution. The constitution makes the board of directors accountable to both a Council of Governors and a Regulator who is now NHS England (NHSE).

[28]The Trust constitution is at pages 150-271. The constitution provides under clause 26.3 for the removal of executive directors; that it should be undertaken by a committee consisting of the chair, the chief executive and other nonexecutive directors (page 163).

[29]The role of Director of Estates and Facilities was not to be an executive/board position in the new group management structure being implemented by Mr Lofthouse at the time of the investigation and Mr Johal’s subsequent dismissal. At that time though, he was still employed as an Executive Director and subject to his contract of employment and the provisions of it.

[30]In June 2021, Mr Johal obtained a Mercedes GLE Coupe under the salary sacrifice car scheme. He paid for this with monthly salary sacrifice payments of £837.63. The salary sacrifice form is at page 498. As part of his role, he was required to visit various sites belonging to the Respondent Trust and so the car was contracted for both personal and business use.

[31]On 20 November 2022, Mr Johal was admitted to Scunthorpe General Hospital with an infection in his left leg which developed into Sepsis. He was in hospital for two weeks and was discharged on 1 December 2022.

[32]On 26 December 2022, he was involved in a serious road traffic accident (RTA) and his vehicle was written off. He was with his wife, daughter and parents. They were all taken to Scunthorpe General Hospital.

[33]Following the accident, his father had some diagnostic tests which revealed small tumours on his brain. His mother then had a major heart attack on 2 April 2023, and Mr Johal became the main carer for both his parents.

[34]We are satisfied that it was an extremely traumatic time for the Claimant.

[35]Despite all that had happened to him, he returned to work on 3 January 2023 and continued to undertake his duties.

[36]As a result of the accident the motor vehicle was written off, and the salary sacrifice payments were stopped. He ordered a new car, again through the salary sacrifice scheme, but that car was not expected to be delivered until March 2024.

[37]Mr Johal had spoken to Keith Fowler (Mr Fowler) Associate Director of Facilities and Sustainability, about his situation on 26 December 2022. He told Mr Johal not to worry about the situation and that he would speak to Sally Yates (Ms Yates) Logistic and Waste Manager, to see if there was anything that could be done to help him out as he had a limited amount of transport available to him. He did have the use of his father’s car as a temporary measure. It can be seen through the email exchanges between the Claimant and Ms Yates on 3 January 2023 at pages 514-520, that the Claimant was offered the possibility of a fully electric car which he didn’t want.

[38]Mr Fowler had told him that there were some scheduled demonstration vehicles on site that he would be able to use in the interim and it can be seen from the email exchange between Ms Yates and Mr Fowler, that a pool car and three demonstration vehicles were available.

[39]Mr Johal queried as to how he was to claim mileage in respect of this vehicle and he was told that a Greyfleet account would be set up under the name “Temp”, to allow him to claim for whatever vehicle he was driving. Greyfleet is a system used by the trust staff for business mileage claims.

[40]Demonstration vehicles are provided to the Trust by vehicle manufacturers free of charge and have been for many years. The benefit for the manufacturer is exposure of the vehicles to the logistics team, the facilities and estate team, and the Trust staff. Unlike pool cars, which are for business use only, staff were able to use the demonstration vehicles for both personal and business use so whilst they were with the Trust, anyone could use them provided they were not booked out. There was no cost to the Trust for the use of these demonstration vehicles.

[41]It can be seen from the document at page 1175 that between 14 April 2023 and 25 August 2023, the Claimant had the use of several different demonstration vehicles normally for a week at a time.

[42]He also used a pool vehicle which he booked through the Trust pool car booking system and he also had the use of this father’s vehicle to get himself to work and to collect the demonstration vehicles.

[43]There is nothing in any of the Trust policies and procedures all the Trust lease scheme regarding the use of demonstration vehicles or indeed guidance, concerning their use. We were referred to the Trust travel policy at pages 55-69 which does not mention demonstration vehicles.

[44]It is not in dispute that other staff had the benefit of these demonstration vehicles free of charge, including one individual who was referred to in the Tribunal proceedings, who used seven different demonstration vehicles on over 50 occasions.

[45]Mr Johal used the vehicles quite openly and Mr Fowler, Ms Yates and several executives including Mr Stacey, were all aware of his use of the demonstration vehicle and the circumstances of his use. During this time, no one spoke to him about the use of the vehicles or suggested that he should not be using the vehicles in the way that he was.

[46]Mr Johal made various mileage claims which are shown at page 543. These claims were made in accordance with the instructions given regarding the Greyfleet system and were approved by Dr Peter Redding Chief Executive, and then Mr Stacey, Acting Chief Executive, and then by Jonathan Lofthouse, also Chief Executive. None of these individuals raised any issue about the use of demonstration vehicles when signing off his expense claims.

[47]Mr Lofthouse started working on a part-time basis for the Trust in May 2023 with a view to him becoming Chief Executive, which he became on 7 August 2023.

[48]During the last week of August 2023, he told Mr Johal about a Chief Executive post at a Community NHS Trust in Norfolk and suggested to him that he should apply for it. Mr Johal was not looking for a new role at the time and certainly, Norfolk was a long way away from his home and his parents, who he was now the main carer for.

[49]On 5 September 2023, Mr Lofthouse announced that he was restructuring the executive team. He brought the two executive teams together from NLAG and HUTH. He announced that there was going to be a restructuring to ensure that there was a single joint board across the two Trusts and launched a consultation process on the group structure. Mr Johal would have to apply for his own position, having removed his role from the Trust board and executive team and that he would now be reporting directly to Mr Bond. The only other role that was affected in the same way was the Chief Information Officer, who subsequently resigned.

[50]Mr Johal was away on holiday at the beginning of September and when he returned to find the details of the new structure, he had discussions with Mr Lofthouse relating to the number of statutory roles that he had held on the Board such as Board Lead for Health & Safety.

[51]Mr Johal was asked to reapply for his role within the new structure, and he submitted his CV with a covering letter. A

[52]His application was never progressed and held in abeyance pending the outcome of his investigation.

[53]The investigation arose out of an anonymously written letter received by Mr Lofthouse on 19 September 2023 (page 538). It makes several serious accusations against Mr Johal. It accused Mr Johal of:(1) Bullying staff and being a friend of a bully;

(2) Inappropriately pushing the use of two companies named Darwin and Day Architecture;

(3) As a man with no qualifications in engineering estates management and project management, he had inappropriately tried to manage the teams and undervalued them;

(4) That he had to employ an expert to review the work and the team at HUTH, rather than do the work himself;

(5) That after he had crashed his car, rather than replace it, he had made the Logistic Manager obtain demonstration vehicles. He accused Mr Johal of bullying a staff member and committing fraud.

[54]He urged Mr Lofthouse not to employ “a bully”.

[55]The following day, Mr Lofthouses’ PA sent the letter to Mr Bond and Simon Nearny (Mr Nearny), the Chief People Officer. He wanted a response by 22 September 2023. He also sent details of Mr Johal’s expense claims which would be considered as part of the review of the complaint.

[56]Mr Bond reviewed the letter and decided that there were only two issues with which he had concerns. The first related to the companies Darwin and Day Architecture, but the main issue related to the car related allegations. This was the allegation that Mr Johal had made the Logistics Manager obtain demonstration vehicles for him. It is interesting how quickly Mr Bond dealt with this and the expression that he used in his email at page 540. He said, “The bigger issue is the car related stuff. We need to think through how we might validate all this.”

[57]Ms Stevenson was the Assistant Director of Finance Compliance and Counter fraud, and she undertook the investigation with Nicki Foley (Ms Foley), Local Counter fraud Specialist. Mr Bond was her line manager and Mr Johal was senior to her.

[58]Ms Stevenson responded to the instruction confirming that she would undertake the investigation and she wrote to Mr Bond on 22 September 2023 (pages 593- 600) setting out the results of her initial enquiries into the issues.

[59]On 24 September 2023, Mr Bond asked for the details of anyone else who had been using the demonstration vehicles to be provided. This information was provided on 25 September 2023 (pages 602-4). Mr Bond also asked for confirmation as to who had authorised the vehicle request and he was informed that they were organised by Ms Yates (page 605).

[60]Mr Bond then forwarded the initial findings to Mr Nearny and arranged to discuss this with him (page 611).

[61]Mr Bond decided that the issue of the use of demonstration vehicles for private use needed to be investigated further. The issue for him was that Mr Johal had not been paying for a vehicle since his car accident in December 2022 and that Ms Yates had been procuring demonstration vehicles for Mr Johal since then, despite the typical period of trial being no more than two weeks. There had been 23 demonstration vehicles recorded as having been arranged for Mr Johal during the period in question.

[62]The issue of Darwin and Day Architecture ceased to be a concern.

[63]On 25 September 2023 Mr Johal was told by Mr Bond that Mr Lofthouse had received the anonymous letter. Mr Bond assured Mr Johal that he wasn’t concerned about any of the allegations apart from the demonstration vehicles which he would need to investigate further. Mr Johal said that he would cancel any future bookings of demonstration vehicles and was clearly horrified by the content of the letter and contacted Ms Yates to ask her to cancel any future bookings.

[64]On 26 September 2023, Mr Bond wrote to Mr Johal to confirm that he had taken the decision to commission a formal investigation into the specific matter of the use of the demonstration vehicles (pages 615-619 and 627). The allegation for investigation was that Mr Johal: “Used his position, influence and office to obtain personal gain from the Trust’s lease car scheme and/or commercial partners.”

[65]Mr Bond referred to the NHS Fit and Proper Person test framework for Board members dated 2 August 2023 which states that: “The individual has not been responsible for, contributed to or facilitated any serious misconduct or mismanagement (whether lawful or not) while carrying out a regulated activity or providing a service elsewhere which, if provided in England, would be regulated activity”.

[66]Additionally, a board member was expected to abide by the Nolan Principles of Public Life.

[67]Mr Bond was the case manager, and Ms Stevenson had the role of Investigating Officer. She was supported by Paul Bunyan (Mr Bunyan) from Human Resources (HR). Terms of reference for the investigation were sent to Ms Stevenson on 26 September 2023 (page 613). He also forwarded on the relevant element of the policy and procedure for the Trust’s lease car scheme which had been sent to him by Mr Lofthouse (page 620 and 367). He also forwarded her the Fit and Proper Person test which is the NHS guidelines on the requirement for appointment to a board level post (page 621).

[68]Ms Stevenson reported directly to Mr Bond. This was not in accordance with the Trust disciplinary policy and procedures. At paragraph 3.3 (page 279), it requires that, “The investigating officer should be an impartial trained investigator of appropriate seniority to the employee.” Ms Steveson was junior to Mr Johal. Mr Bond had immediately considered this was a matter of fraud and that’s why he appointed Ms Stevenson to conduct the investigation. She was Mr Bond’s most senior lead for governance at the Trust, and he would ordinarily call her into any counter fraud investigation. Mr Bond says that it was Ms Foley who handled the counter fraud initial review and that Ms Stevenson merely passed the information on to him. We do not agree with his view. She was undertaking the board investigation as she saw it, into Mr Johal.

[69]On 29 September 2023, Ms Stevenson held an investigation meeting with Ms Sally Yates. She had prepared several questions which are at pages 674-679 and there are notes marked on those questions. The minutes of the interview though, are at pages 703-718. She confirmed that the demonstration vehicle facility was available to all Trust staff but that it was not contained in any Trust policy; that the longest period in which someone would typically keep a demonstration vehicle would be two weeks.

[70]Ms Yates said that she had not been put under pressure to secure vehicles by Mr Johal, but she accepted that trying to maintain his access to vehicles had been difficult at times as she was, “running out of options”.

[71]Arrangements had been made by Ms Yates for various vehicles which were in the list provided by her, for Mr Johal’s use between 14 February 2023 and 30 October 2023 although Mr Johal had cancelled the arrangement once he was told of the allegations. She was asked that if someone else had gone to her and asked her to provide them with demonstration vehicles for the same duration as Mr Johal had used them for would she have done it and she stated that she had not thought of it that way before, but would tell them she could not do that.

[72]Ms Stevenson then interviewed Lee Walker (Mr Walker), Managing Director of Knowles Associates fleet. The notes of her discussions with Mr Walker and the questions she had prepared are at pages 693-4 and the full interview notes are at pages 719-722. He confirmed that he was not involved in arranging demonstration vehicles for the Trust; that their job was to manage the fleet vehicles. He explained that for staff to have a demonstration vehicle, they just needed to do the normal checks they would carry out for a lease car. Mr Walker assured Ms Stevenson that he only knew Mr Johal on a professional basis. He explained that Mr Johal had been offered a replacement vehicle and that his company had prepared a couple of quotes, but Mr Johal had rejected them as he said they were too expensive and he would explore other options. Mr Walker had little to do with the arrangements that were made regarding the provision of the demonstration vehicles.

[73]On 2 October 2023, Mr Johal was invited to an investigation interview (pages 792- 4). The allegation was that: “You used your position, influence and office to obtain personal gain from the Trust Lease car scheme and/or commercial partners.”

[74]The meeting took place on 16 October 2023, and the notes are at pages 938- 950. Also in attendance were his union representative Andy Cullen and Paul Bunyan.

[75]On 16 October 2023 Ms Stevenson interviewed Mr Fowler with Paul Bunyan present. The note of the meeting are pages 953-955. Mr Fowler told her that on the evening of the 26 December 2022 when Mr Johal had had his car accident Mr Johal called him and he had visited him at the hospital with his wife. He said that he had contacted Sally Yates and shared with her that Mr Johal had been in a car accident and that it would need to be managed in line with the normal process. He had asked Sally Yates about what she could do for Mr Johal in the meantime as he would have no transport. He had been told by Sally Yates that there were demonstration vehicles on site and that Mr Johal could use those and to leave it with her to organise

[76]On 20 October 2023 Mr Bond emailed Ms Stevenson to say that he had just had a conversation with Mr Lofthouse who was keen that the matter be “brought to a conclusion as soon as possible” and Mr Bond had agreed with him to complete the report by close of play on 24 October 2023.

[77]An interesting exchange had taken place prior to this, between Mr Bond and Ms Stevenson which is at page 1256. On the evening before she was due to meet Mr Johal, she had contacted Mr Bond asking if there was anything she should know before she met with him. Mr Bond’s reply was: “Nope, no change. He is still professing that he’s not done anything wrong….PS welcome back!!”

[78]Ms Stevenson’s reply was: “OK, we’ll see about that. Thanks!”

[79]On 27 October 2023, Ms Stevenson sent her draft report to Mr Bunyan for his review “from an HR perspective”. After their exchanges, Ms Stevenson emailed Mr Bond on 28 October 2023 (pages 1148-1149). She attached her investigation report (pages 1155-1174) and various appendices to that report.

[80]Ms Stevenson summarised her findings at paragraph 7.12 which states: “Jug Johal has had access to and utilised a vehicle provision (namely Trust demonstration vehicles) excessively, which although not linked directly to the Trust Lease car scheme as per the basis of the allegation set out in the investigation terms of reference, he experienced almost exclusive access to and benefit of, during 2023. This was whilst in his capacity as the Interim Joint Director of Estates and Facilities, a role with overall responsibility for the Knowles Associates contract and the Trust fleet management arrangement. No other director at the Trust utilised demonstration vehicles in this way and a key witness has confirmed they would not make similar arrangements for any other member of staff for the length of time Jug Johal has benefited from it for. A member of Mr Johal’s team has confirmed utilising their NHS contractual tie in scheduling vehicles directly for his use. Additionally, there has been the setting up of the online Greyfleet system account to support the use of demonstration vehicles and the submission of mileage claims by Jug Johal, in a way that no other employee is able to (employees are required to submit their vehicle details and associated paperwork before claims can proceed by the Greyfleet system). Jug Johal had many opportunities to reflect and question these unique circumstances over the nine months since his unfortunate RTA, following which he commenced using demonstration vehicles but deemed that there was no wrongdoing or indeed financial benefit to himself that needed to be addressed, only conceding during the investigation meeting that he could see how it may be perceived by someone without the full context. To this end, there is a reasonable belief that Jug Johal had access to and utilised his Trust provision as a personal benefit as a direct result of the position he holds. There is no evidence of influence of commercial partners, however, it is evident that Jug Johal utilised demonstration vehicles in a way that was likely not intended, and certainly not known, by Trust commercial partners”.

[81]On 1 November 2023 Mr Johal attended a meeting with Mr Bond where he was told that the investigation had concluded and the decision was that there was a disciplinary case to answer.

[82]Also, on the 1 November 2023 Mr Johal had a telephone conversation with Mr Lofthouse. They discussed the disciplinary hearing. Mr Lofthouse asked him to attend the disciplinary hearing, to be professional and at the appeal stage he would overturn it due to a “technical issue”. He was told to “trust the process”

[83]On 2 November 2023 Mr Johal was invited to attend a disciplinary hearing on 22 November 2023 (pages 1185-1188). He was sent a copy of the investigation report.

[84]On 10 November 2023 Mr Bond telephoned Mr Johal. He suggested that if Mr Johal resigned then he could work his notice and receive a low-level warning. He told Mr Johal to think about it and that he didn’t need to respond immediately. Mr Bond told him that he had sought advice from Mr Nearny about the option of him resigning and accepting a lower-level warning.

[85]We are satisfied that Mr Johal felt uncomfortable about this especially as Mr Bond had been discussing this with Mr Nearny who was assigned to him to provide confidential pastoral support This though offered a way out for Mr Johal who would then not be dismissed for gross misconduct.

[86]By 17 November 2023 they were getting close to the disciplinary hearing date and Mr Bond contacted Mr Johal asking whether he was going to get a letter soon. He said he was being pressured by HR. Clearly, he was referring to a letter of resignation as they had discussed earlier. He was told by Mr Johal that, “it’s in my bag.”

[87]Mr Johal raised a query about whether the dismissal would amount to a break in his service. We are satisfied that Mr Johal was being placed under extreme pressure to resign by Mr Bond and this resulted in him sending in his letter of resignation on 21 November 2023 and led to the cancellation of the disciplinary hearing on 22 November 2023 and the meeting was then rescheduled for 1 December 2023 (page 1202-5).

[88]On 23 November 2023 Mr Johal had a meeting with Mr Lofthouse. He advised Mr Johal that he should retract his resignation, attend the disciplinary panel and apologise and accept the sanction. We are satisfied that he assured Mr Johal that he would overturn the sanction at the appeal stage which would be dealt with by him. Mr Johal was told that he would be issued with a six-month warning. He told him that if he did not go through the process that it may have an impact on the kind of reference that could be offered.

[89]As a result of these assurances, Mr Johal withdrew his resignation and the disciplinary hearing proceeded on 1 December 2023. The notes are at pages 1294-1320. The hearing was chaired by Mr Stacey who was a peer of the Claimant. Also in attendance was a non-executive director Simon Parkes (Mr Parkes).

[90]The Claimant had submitted a personal statement which was considered at page 1289-1293. At the meeting he emphasised the personal context of the events leading to the investigation; talking about his sepsis, the RTA and his caring responsibilities.

[91]It gave a full and frank description of what had led to the investigation. He assured the panel that at no point had he tried to influence, exert pressure or request vehicles to be allocated for his sole purpose. Ms Yates had allocated these vehicles to him as per the demonstration vehicle schedule agreed directly with manufacturers, who she met regularly. Ms Yates had stated in her interview that she didn’t think she was doing anything wrong. Mr Johal also didn’t think he was doing anything wrong at the time.

[92]He explained that he had had the option to take a “lead in car” but he decided that by using his father’s vehicle and his wife’s vehicle he could get around the problem by using the demonstration vehicles as a pool vehicle in the same way as a leased vehicle. He emphasised that he had not taken them home at weekends and he did not use them every day and they were not always available through the period. Also, other than on exceptional and rare occasions, he did not use them for private mileage.

[93]In his reflections at the conclusion of the statement, he reiterated that he did not in any way influence any member of his team to organise demonstration vehicles solely for his purpose and said that this had been confirmed by Ms Yates. She had arranged this herself to help him through a difficult period rather than something he had requested.

[94]Also on reflection, he acknowledged that as a director/board member in public office and as a custodian of the lease car scheme, he could see that the regular availability of a demonstration vehicle could be misinterpreted and considered excessive regardless of his personal circumstances at that time. For that, he wished to apologise to his board colleagues and the colleagues who he had worked with for many years. He said that he felt ashamed and embarrassed that he was sat before them and he did not underestimate the upset he had caused his immediate family and close colleagues.

[95]There was never any intent to make financial gain from utilising demonstration vehicles and that he should not have allowed the considerable sustained pressures he was experiencing in his personal life to impact his decision-making and responsibilities, which he was accepted was naive.

[96]The disciplinary hearing notes show that during the discussion, Mr Johal was consistent with what he had said in his personal statement. The meeting adjourned and was reconvened very shortly afterwards. Mr Stacey’s finding was that Mr Johal had not set out to enrich himself or deliberately use his position for personal gain; that members of his team together with the staff at Knowles Associates, had facilitated a set of arrangements to support Mr Johal; that enabled him to benefit from the use of a succession of demonstration vehicles.

[97]Despite these findings, Mr Stacey went on to find that Mr Johal had used his position, influence and office to obtain personal gain from the Trust lease car scheme and/or commercial partners and that as a result of his action, he had acted in a manner with the potential to bring the trust into disrepute should the allegation become public record via the media. The decision was that he had committed an act of gross misconduct and that he should be dismissed without notice. He was asked to clear his desk by 4 December 2023.

[98]We are satisfied that the decision reached and the way it was reached so quickly bearing in mind the claimant’s position and explanation given by him was predetermined.

[99]On 8 December 2023 Mr Stacey wrote to Mr Johal confirming that the outcome of the disciplinary hearing was that he was summarily dismissed from his employment for gross misconduct with a termination date of 1 December 2023 (pages 1370-1384).

[100]The letter of dismissal confirmed that Mr Johal had not set out to enrich himself or deliberately use his position for personal gain and acknowledged that the Trust had regularly received scheduled demonstration vehicles for several years at no cost as these were sent by manufacturers to promote vehicles. It had been common practice for the employees, predominantly within the estates and facilities department, to use the vehicles sent. Despite these findings, Mr Stacey found that the Claimant had committed the act of gross misconduct alleged.

[101]On 20 December 2023 Mr Johal appealed against the outcome of his disciplinary hearing. His letter of appeal is at page 1510-1518.

[102]The letter confirmed that he had made a misjudgement and a mistake, but it was not associated to any fraudulent or illegal activity and had caused no material loss to the trust.

[103]He pointed out that the disciplinary panel had not provided him with any documentary evidence to demonstrate that the principles of the Just and Learning Culture framework had been followed.

[104]He confirmed the details of the call from Mr Bond on 10 November 2023 when he was offered a resignation which would allow him to work his three-month notice and result in him receiving a formal warning at worst (page 512). This had led to his decision to resign. Whilst he did not refer to his conversation with Mr Lofthouse directly, he said that he had retracted his resignation because he was encouraged to have his voice heard and have faith in the trust’s adherence to its own policies and procedural processes. This clearly was a reference to the conversation with Mr Lofthouse without naming him because he knew that Mr Lofthouse would be dealing with the appeal and he did not wish to prejudice the appeal. He still believed that Mr Lofthouse would overturn the decision in accordance with the assurance given.

[105]Mr Johal said that he felt that the sanction of summary dismissal was highly disproportionate considering his unblemished employment history and achievements and the difficulties that he had had during the 12 months up to the termination of his employment.

[106]The appeal hearing took place on 6 February 2024. It was chaired by Mr Lofthouse and in attendance was Gillian Ponder (Ms Ponder), non-executive director/senior independent director of the Respondent. The panel was supported by Lindsay Harding (Ms Harding), Director of Workplace for the Respondent. The notes are at pages 1745-1771.

[107]Mr Johal read all 13 pages of his statement of case.

[108]It was submitted on his behalf that there was an inconsistent, inappropriate and excessively harsh sanction; that:(1) He had followed the guidance which allowed employees for several years to use the demonstration vehicles and that he had used a vehicle akin to a pool car. That he had taken advice on how to claim business mileage, and only claimed business use;

(2) He had not in any way acted illegally or fraudulently or dishonestly;

(3) There was no material loss to NLAG;

(4) He did not make any claim for personal use of the demonstration vehicles;

(5) He had not coerced anyone into assisting him and had not set out to enrich himself and deliberately use his position for personal gain.

[109]He complained that there had been procedural irregularities concerning Mr Bond as his case manager and Ms Stevenson as the investigating officer and he also claimed that there was considerable mitigation about his personal circumstances.

[110]He raised the question of whether Mr Stacey had the power to dismiss him because under his contract of employment as stated above, only the chair and chief executive have the power to remove a director. Mr Lofthouse sought to explain this by saying that he did not constitute as an executive director because he was not a voting member of the board.

[111]After Mr Stacey had presented his case and was questioned by the panel, they adjourned.

[112]On 12 February 2024 Mr Lofthouse wrote to Mr Johal to confirm the decision of the appeal panel was that the decision to dismiss was upheld (page 1780-86). The letter confirmed that the appeal panel were prepared to consider a lesser sanction only so far as reducing the finding from one of gross misconduct to one of misconduct of a serious nature.

[113]This resulted in the Claimant being paid his notice pay. Whilst the disciplinary procedure refers to gross misconduct and misconduct, there is no reference to, “misconduct of a serious nature.”

[114]The decision of the appeal panel was final and there was no further right of appeal.

The Law

[115]The claim of unfair dismissal is made under section 94 ERA. Section 98 states as follows: “(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.

[116]The compensatory award is dealt with at section 123 ERA which says. “(1)… The compensatory award shall be such amount at the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. (6) where the tribunal finds that the dismissal was to any extent cause 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 .”

[117]The Tribunal have the benefit of experienced and able advocates on behalf of both the Claimant and the Respondent and as they both acknowledged, there is little dispute between them about the relevant legal principles on dealing with a case of unfair dismissal.

[118]We were referred to by Mr N Brockley (Mr Brockley):• Strouthos v London Underground Ltd [2004] ILR 636;

• Hewston v Ofstead [2023] ILR 878; and

• Taylor v OCS Group Ltd

[2006] IRLR 613

[119]Mr Boyd took us through many of the cases relevant to unfair dismissal hearings. In particular:• Royal Mail Group v Jhuti

[2019] UKSC 55

;

• British Home Stores v Burchell

[1978] IRLR 379

;

• Post Office v Foley; Midland Bank PLC v Madden

[2000] IRLR 827

;

• Westminster City Council v Cabaj

[1996] ICR 960

;

• Garcha-Singh v British Airways PLC

[2023] ICR 1458

;

• Hadjioannou v Coral Casinos Ltd

[1981] IRLR 352

;

• Post Office v Fennell

[1981] IRLR 221

[120]Whilst the main part of our decision was to deal with the question of liability we were also asked to deal with our findings on any Polkey issue. Mr Boyd referred us to:• King and Others v Eaton Ltd (No 2)

[1998] IRLR 686

;

• Software 2000 Ltd v Andrews and Others

[2007] ICR 825

;

• Eversheds Legal Services Ltd v De Belin [2011]

UKEAT/0352/10

[121]In respect of contributory conduct, he referred to:• Nelson v BBC (No 2)

[1979] IRLR 346

;

• Stein v Asp Packaging Ltd [2013]

UKEAT/0023/13

. Conclusions Reason for Dismissal

Conclusions

[122]Our first difficulty in this case, is over the reason for the dismissal. As Mr Brockley says it is a well-established principle that an employee can only be disciplined or dismissed for the exact offences they are formally charged with. Employers cannot widen the scope of charges mid-hearing to secure a dismissal.

[123]In this case, the charge against the Claimant throughout was the same namely, that: “You used your position, influence and office to obtain personal gain from the Trust lease car scheme and/or commercial partners”.

[124]As a subsidiary to this, and we find it can only be seen as such, that as a result of the behaviour, he had acted in a manner which had the potential to bring the trust into disrepute should the allegation become public record via the media.

[125]This is the allegation that he faced. The Disciplinary Process

[126]There are several problems with the disciplinary process including that under his contract of employment, the only person who had authority to dismiss him was the Chief Executive Mr Lofthouse. Mr Stacey did not have authority to dismiss.

[127]In respect of the investigation, we are satisfied that there was not an unbiased investigation into his behaviour, but an inappropriate investigation undertaken by someone who was junior to him when such an investigation should not have been carried out by that person.

[128]The investigation was conducted in a manner to seek to validate the misconduct rather than to approach it in an even-handed manner.

[129]Throughout the investigation, disciplinary process and subsequent appeal process, the Respondent did not follow its own Just and Learning framework.

[130]This Tribunal is satisfied that it was not necessary to dismiss Mr Johal or indeed, subject him to disciplinary procedures.

[131]There was no evidence that his conduct showed any dishonesty on his behalf and at the time that he was using the demonstration vehicles he genuinely believed that he was doing nothing wrong.

[132]He was open in respect of what he was doing. Senior management knew he was using the demonstration vehicles but did not think themselves that he was doing anything wrong and did not try to stop him.

[133]If anyone had spoken to him and advised him against doing this, we are satisfied that he would have stopped immediately as he did as soon as he was told about the allegation.

[134]The investigation was only undertaken after the fortuitous receiving of the anonymous letter by Mr Lofthouse. We are satisfied that Mr Lofthouse had already determined that Mr Johal was surplus to requirements, encouraging him to apply for other positions and then undertaking a reorganisation whereby only Mr Johal and one other person had to reapply for their positions.

[135]The interview notes with Ms Yates show she did not feel pressurised by Mr Johal and there was no evidence of undue influence or that he had exploited his position. He was simply looking for a solution to the problem of him having transport whilst he was waiting for his new car to be delivered. During this period he also used his parents’ vehicle and pool cars.

[136]We are not satisfied that what he did was done for personal gain. He was obtaining another vehicle via salary sacrifice, and he was looking for ways of finding a solution in the interim.

[137]The disciplinary panel itself found that he did not seek to enrich himself or deliberately use his position for personal gain. If they were satisfied of that, we are at a loss to understand how they could find that he used his position, influence and office to obtain a personal gain from the Trust lease car scheme or commercial partners.

[138]Throughout the proceedings Mr Johal was honest and straightforward with the investigating officer, the disciplinary panel and the appeal panel and accepted that upon reflection, how an onlooker might misinterpret his use of demonstration vehicles and that he should have recognised this sooner.

[139]His reflections were not enough for the disciplinary panel who found that he should have known that his actions throughout the period were not appropriate and not in accordance with Trust policies and procedures or in line with the Nolan principles.

[140]This was even though the use of demonstration vehicles had been taking place over many years and no one including him, Ms Yates, Mr Fowler or colleagues, thought that what he was doing was wrong. He certainly had not acted dishonestly, and he did not abuse his position, although he acknowledged that his actions on reflection could be misinterpreted by others.

[141]The reflections that he provided to the appeal hearing which he hoped might have looked at favourably in terms of overturning the original decision, were distorted by them, against him, with a finding that there, “was some level of insight regarding the perception of others and numerous opportunities for you to change the course of events.”

[142]There is no level of insight indicated at any stage up until the time it was pointed out to him that it was inappropriate.

[143]The appeal panel itself came to, what we are satisfied, is the strangest of decisions. They decided to find that he had not committed an act of gross misconduct but one of serious misconduct. Under the trust disciplinary procedure, only gross misconduct carries the penalty of dismissal. A finding of misconduct only carries a penalty of a warning. The reasonableness of the decision

[144]The reason for the dismissal relied on in this case is as set out in the invitation to the disciplinary hearing. That involves we being satisfied that:(1) The Respondent genuinely believed that the Claimant was guilty of the misconduct alleged;

(2) That they had reasonable grounds to sustain that belief; and

(3) At the stage they formed that belief, they had carried out as much investigation as was reasonable in the circumstances.

[145]We considered the range of reasonable responses test as set out in the case of Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

. We must not substitute our view for that of the employer but look at each stage of the process and decide whether it was within the range of reasonable responses. This obviously, is a high benchmark for us to consider.

[146]In this case, we are not satisfied, for all the reasons I have outlined above, that the Respondent believed that the Claimant was guilty of the misconduct alleged and that they did not have reasonable grounds to sustain that belief. There was no evidence that Mr Johal used his position to influence and office to obtain personal gain from the Trust lease car scheme. Nor was there any evidence of any prejudice to any of the Trust’s commercial partners.

[147]Their investigation was deeply flawed and was only concerned with trying to establish that Mr Johal had committed some act of wrongdoing.

[148]Mr Stacey had no power to dismiss the Claimant because he was not empowered under the contract of employment to do so. Only Mr Lofthouse held that power.

[149]We are also satisfied that Mr Johal was misled by Mr Lofthouse into believing that if he “trusted in the process “he would not be dismissed. Mr Johal was clearly mistaken in believing Mr Lofthouse.

[150]For these reasons, we find that the Claimant was unfairly dismissed. Polkey

[151]In this case, we are not satisfied that it would be appropriate to make any reduction at all in the circumstances of this case. We are satisfied that no reasonable employer who had conducted the enquiries into Mr Johal’s case would have subjected him to disciplinary process, let alone dismissed him for gross misconduct or indeed, conduct of a serious nature. A Polkey reduction is, therefore, not appropriate in this case. Contributory Conduct

[152]Similarly, we find that the Claimant’s conduct was not culpable or blameworthy in that it caused or contributed to his dismissal.

[153]Whilst Mr Johal may on reflection, not have done what he did, it did not in any way justify the treatment that he received from his employer after giving them 17 years of loyal service and unblemished at that.

[154]Mr Johal had gone through the most terrible 12 months of his life we are sure with the incident over his sepsis, the RTA, the issues with his parents and then this was compounded further by the unjustified disciplinary proceedings and his ultimate dismissal for gross misconduct. We are satisfied that there should be no reductions at all in respect of this matter. Approved by