Mr B Deakin v Boots Management Services Ltd: 2602059/2016

EMPLOYMENT TRIBUNALS

Case No 2602059/2016

Between

Mr B DeakinClaimant

Boots Management Services LtdRespondent

Before

Employment Judge Hutchinson

Members

Mrs C Hatcliff

Mr D Maxwell (instructed by Counsel) for claimant

Ms C Duff (instructed by Counsel) for respondent

Date 23 August 2017

JUDGMENT

[1]The claim of unfair dismissal under Section 94 Employment Rights Act 1996 fails and is dismissed.

[2]The claim of unfair dismissal under Section 103A Employment Rights Act 1996 fails and is dismissed.

[3]The claim of breach of contract in respect of notice pay fails and is dismissed.

[4]The claim of victimisation was withdrawn and dismissed.

[5]The claim of discrimination arising from disability contrary to Section 15 Equality Act 2010 fails and is dismissed.

[6]The claim of failure to make reasonable adjustments contrary to Section 20 Equality Act 2010 fails and is dismissed.

[7]The claim of direct discrimination because of the protected characteristic of age contrary to Section 13 Equality Act 2010 fails and is dismissed.

[8]The claim of direct discrimination because of the protected characteristic of sex contrary to Section 13 Equality Act 2010 fails and is dismissed.

[9]The claim of harassment related to the protected characteristics of age and sex contrary to Section 26 of the Equality Act 2010 fails and is dismissed. RESERVED Case No: 2602059/16 Page 2 of 26

[10]The claim that the Claimant suffered a detriment because he made protected disclosures under Section 47B Employment Rights Act 1996 fails and is dismissed.

[11]The Respondent has failed to pay the Claimant his holiday entitlement and is ordered to pay to the Claimant the sum of £636.12 gross.

[12]The provisional remedy hearing set for 26 October 2017 is cancelled.

REASONS

[1]The Claimant presented his claim to the tribunal on 9 December 2016. He had been employed by the Respondent as a relief pharmacist and had commenced his employment on 5 September 1988. He had been dismissed for alleged gross misconduct on 21 July 2016. Apart from the matters dealt with above, the Claimant had also claimed direct disability discrimination, which was withdrawn at the preliminary hearing on 31 January 2017 and victimisation, which was withdrawn by Mr Maxwell at the conclusion of the evidence and both these claims were dismissed by agreement.

[2]A case management preliminary hearing had been conducted by my colleague Employment Judge Camp on 31 January 2017. Attached to that document is a list of issues, which were not in dispute. These are as follows: Unfair dismissal under Section 94Employment Rights Act 1996 (“ERA”)

[1]Has the Respondent shown a potentially fair reason for dismissal under section 98(2) ERA, namely conduct?

[2]Following the 3 stage test in BHS v Burchell

[1987] IRLR 379

:a. Did the Respondent genuinely believe that the Claimant was guilty of misconduct?

b. Did the Respondent hold that belief on reasonable grounds?

c. Did the Respondent carry out a fair and proper investigation?

[3]Was the dismissal fair or unfair, by virtue of section 98(4) ERA, applying the band of reasonable responses? Unfair dismissal contrary to Section 103A ERA What was the principal reason the Claimant was dismissed and was it because he had made a protected disclosure? 1. Was the Respondent entitled to dismiss the Claimant without notice? 2. Can they, on the balance of probabilities prove that the Claimant had committed an act of gross misconduct and therefore fundamentally breached his contract of employment which entitled them to terminate his contract without notice? RESERVED Case No: 2602059/16 Page 3 of 26 Discrimination arising from disability 1. Was the Claimant treated unfavourably by being managed out of the business (dismissed) or indeed by any of the matters set out in paragraphs 27 - 31 of the ET1, as a result of something arising in consequence of his disability, namely his tendency to talk excessively and go into excessive detail as a result of his anxiety? 2. Did the Respondent know, or could they reasonably have been expected to know, that the Claimant had the disability? 3. Can the Respondent show that the treatment was nonetheless justified as a proportionate means of achieving a legitimate aim? Failure to make reasonable adjustments

[1]Did a provision, criterion or practice (PCP) place the Claimant at a substantial disadvantage in relation to relevant matters (as follows) as compared with persons who are not disabled (see paragraph 31 of the ET1)?

[2]The PCPs relied upon were as follows:2.1.1 The conduct of the disciplinary process, namely the attendance of the investigations meeting, disciplinary hearing and appeal hearing. In particular, the manner of questioning which the Claimant claims was unduly accusatory with an implicit assumption of his guilt, the Claimant being cross-examined from the outset of the investigation rather than being asked open questions from a neutral starting point so far as concerned his guilt and innocence.

2.1.2 The comparator was someone who did not have the anxiety in similar circumstances.

2.1.3 The substantial disadvantage was the Claimant states that he became “hyper” and went into “infinite detail” when under stress. The reduction in the dosage of his medication had had an adverse effect at the relevant time.

2.1.4 The steps taken would be asking open questions from a neutral starting point as far as his guilt and innocence was concerned.

2.2.1 The requirement of the Claimant to work as a relief pharmacist after 27 November.

2.2.2 The comparator was someone who did not suffer from anxiety in similar circumstances. 2.2.3. The substantial disadvantage was that on each occasion he was required to form new relationships within stores which added to his anxiety and this led to communication difficulties with colleagues and this in turn at least contributed to the allegation being made that formed the subject matter of the disciplinary proceedings against him. RESERVED Case No: 2602059/16 Page 4 of 26 2.2.4. The steps that should have been taken were to find him a role at a single store.

[3]Did the Respondent not know and not reasonably have been expected to know at all relevant times that the Claimant was a disabled person.

[4]Did the Respondent not know and not reasonably have been expected to know the Claimant was likely to be placed at any such disadvantage.

[5]Were there steps that could have been taken to avoid any such disadvantage? The Claimant suggests:(a) Referral to an occupational health when he raised the fact that he took Citalopram and that he suffered from anxiety (something which had been recognised in November 2014).

(b) Find him a role in one store rather than as a relief pharmacist.

[9]If so, would it have been reasonable for the Respondent to have to take those steps. Direct age discrimination 1. Was the Claimant treated less favourably than an actual or hypothetical comparator in materially similar circumstances by being disciplined and dismissed; comments about and relating to his age, as set out in paragraph 20 of the amended grounds of claim of the ET1? For this purpose, the Claimant relies on male pharmacists in their 20s, 30s and 40s (see paragraphs 20(g) (i) and (ii) of the ET1 as opposed to the Claimant who is in his late 50s. 2. Was any such less favourable treatment because of the Claimant’s age, namely that he was part of an older age group as set out above or because of his age more generally. Direct sex discrimination 1. Was the Claimant treated less favourably that an actual or hypothetical comparator in materially similar circumstances by;• being disciplined and dismissed;

• being subjected to comments about and relating to his sex as set out in paragraph 20 of the amended grounds of claim. For this purpose the Claimant relies on female pharmacists in similar circumstances. 2. Was any such less favourable treatment because of the Claimant’s sex or because of the protected characteristic of sex more generally? Harassment 1. Did the Respondent subject the Claimant to unwanted conduct, namely being?

• disciplined and dismissed;

• subjected to comments about and relating to his age and sex as set out in paragraph 20 of the amended grounds of claim. RESERVED Case No: 2602059/16 Page 5 of 26 2. If so, did that conduct relate to his sex and/or his age? 3. If so, did it have the purpose or effect set out in Section 26(1)(b) of the Equality Act 2010? Protected disclosure detriment 1. Were all of the Claimant’s complaints presented within the time limit set out in Sections 48(3)(a) and (b) ERA? 2. Did the Claimant make a disclosure of information which he reasonably believed was in the public interest and was the disclosure a qualifying disclosure under Section 43B(1)(d) as stated in paragraphs 13 and 14 of the ET1 as follows: On 21 May 2016, the Claimant reported to Chris Ward, Clinical Governance, an allegation about controlled drug dependencies, namely that after seals had been broken on boxes and different tablets put in different boxes and that there was a potential danger to the public in this practice being followed at the pharmacy. 3. If a qualifying disclosure was made to Chris Ward as alleged, it was necessarily a protected disclosure because it was made to the Claimant’s employer. 4. Did the Respondent subject the Claimant to a detriment; namely a lack of objectivity in the investigation and disciplinary process as per paragraphs 15 and 16 of the ET1? 5. If so, was this done on the ground that he had made a protected disclosure? Holiday pay 1. How many days holiday had the Claimant accrued in the year from 1 April 2016 until his dismissal? 2. How many days holiday during that holiday year had the Claimant taken? 3. Had any of the days that he had taken been rolled over as part of his entitlement to holiday in the previous year? 4. What was his daily rate of pay and how much holiday pay was he entitled to? Evidence 3. We heard evidence from the following witnesses: For the Respondent;

• Marshall Stevenson, Store Manager and dismissing officer

• Kerry Wayt, Area Manager and appeal officer For the Claimant;

• The Claimant

• Mark Pitt, Union Officer RESERVED Case No: 2602059/16 Page 6 of 26 4. There was an agreed bundle of documents and where I refer to page numbers, it is from that bundle. Several additional documents were added during the course of the hearing. 5. We found the Respondent’s witnesses reliable. They made appropriate concessions, an example of which was Kerry Wayt who in her witness statement at paragraph 4 indicated that she had been provided with more detailed grounds of appeal (pages 207 - 313). The statement indicated that she had received this prior to the appeal hearing. We were satisfied that she had not and she accepted that it was a mistake in her statement. The Claimant’s witness (Mr Pitt) confirmed that he had not sent the document prior to the hearing and thought that it had been handed during the hearing although he could not be sure. The document is not referred to in the appeal hearing. Mr Stevenson was a compelling witness. He was consistent and under severe cross-examination from Mr Maxwell, did not waiver in his evidence. 6. Both of the Respondent’s witnesses were experienced managers and had handled disciplinary proceedings before and both were pharmacists and understood the issues that were presented to them. Neither had any prior knowledge of the Claimant and had no motive for being other than truthful to the tribunal. 7. Mr Pitt could not be sure whether he had handed the notes that are referred to above in at the hearing, otherwise his evidence was consistent. 8. Mr Deakin was not a reliable witness. He was not consistent in his version of events. An example of this related to the inappropriate touching allegation. At three different stages during the process, he gave three different versions, namely;

• he could not remember

• he could not say

• it was an accidental brushing. 9. Another example related to the issue of the condoms which at various points he referred to a flavoured or otherwise.

Evidence

[10]He also used the expression repeatedly about his comments being “low level inappropriate”. The comments are either appropriate or inappropriate.

[11]Another inconsistency was that at one stage he referred to the witnesses being mistaken but by the appeal he was saying that they were lying. There was no suggested motive for them to lie about the incidents. None of the witnesses to the events at the store knew him or had any previous dealings with him and it can be seen from the various statements that the witnesses gave, they were consistent whereas he was not.

The facts

[12]The Respondent is a pharmacy chain in the United Kingdom and Ireland with outlets in most high streets, shopping centres and airport terminals. It has over 2,500 stores in the UK and has approximately 70,000 employees.

[13]The Claimant was employed by the Respondent as a relief pharmacist. He commenced his employment on 5 September 1988 and at the date of his dismissal on 21 July 2016 he was 58 years old. He was paid an annual salary of approximately £44,000. RESERVED Case No: 2602059/16 Page 7 of 26

[14]We were referred to his statement of particulars of employment at pages 46 - 47. That said under disciplinary rules: “You are expected to meet required standards of conduct, attendance, timekeeping and job performance as determined both by the Company and by your line manager.”

[15]All employees are subject to the terms in the employee handbook. Extracts are at pages 71 - 78 and the dignity at work policy is at 79 - 81. The diversity and equality policy is at pages 82 - 85.

[16]In the handbook, various examples of gross misconduct are given which are not exhaustive and includes; “Any deliberate act or omission which undermines the mutual trust on which the contract of employment relies” And “Serious misbehaviour towards fellow employees, customers, suppliers or visitors eg verbal abuse, fighting or harassment” (Page 77)

[17]Harassment is defined as; “Any behaviour by one person which is found to be unacceptable or unwelcome by another and can affect the confidence, morale, performance and even the health of the person being harassed.” Examples include: “Sexual harassment such as unwelcome sexual attention, suggestive or over familiar behaviour including uninvited touching. This can affect both male and female employees.”

[18]The dignity at work police also provides a definition of harassment and gives examples of unacceptable behaviour, including; “Unwanted nicknames, comments or jokes related to a person’s sex, ... “ (Page 79).

[19]E training is provided in respect of the equality and diversity policies and the Claimant confirmed that he had undertaken this training.

[20]On 27 November 2014, the Claimant was issued with a written warning in relation to using inappropriate language whilst on the telephone to a GP surgery about a patient, in front of the patient and colleagues. The written warning is at pages 137 - 141. The Claimant appealed against this decision. The Claimant was interviewed in respect of that appeal on 19 June 2015 in the presence of Mr Pitt, his union representative. During that conversation, Phil Kielthy who was conducting the interview discussed with the Claimant a previous performance improvement plan from 2013, which was instigated in part because of inappropriate comments that he had made. The Claimant was asked what steps had been taken since 2013 to stop inappropriate comments. His reply was: “Just not talk about personal things. Just talk about work” (Page 158). RESERVED Case No: 2602059/16 Page 8 of 26

[21]The appeal hearing decision was to withdraw the written warning. Mr Kielthy wrote to the Claimant on 19 June 2015 to confirm his decision (pages 161-3). He felt that the written warning was disproportionate to the matters identified. Mr Kiethy issued recommendations and guidance, in particular he said; “Appropriate conversations I do believe the language that was used to describe a patient in front of your colleagues and other patients was not professional and you identified that you would handle this differently in future. I must reiterate that this language and type of conversation is not appropriate or professional and you must ensure that you carefully monitor your behaviour in this regard. I will say that any further incidents in regard to inappropriate language in the workplace will be investigated in line with our Company policy. The guidance will remain on your file and may be referred to in the future should a further incident occur.”

[22]Shortly before this appeal hearing (i.e. on or around 1 May 2015) the Claimant met Mr Dolby for some training in respect of his communication skills. He was supplied with a document called “Effective Communication Skills” which is at pages 332 - 334. The advice in this document is contradictory. It says; “7. Reveal as much about yourself as possible. One of the best ways to earn someone’s trust is to reveal yourself as open as you can. Tell stories about interesting events from your life or just describe any instances from normal every day life. As you do this, make sure not to mention things that stray too far from their interest and values lie. Nothing builds trust like genuine transparency.”

[23]This document was used by the Claimant as justification for his behaviour in April and May 2016 and the events which led to his dismissal.

[24]On 23 April 2016 and 21 May 2016, he worked at the Broxtowe Lane store in Nottingham. He did not know and had not met any of the staff before. One of the dispensers who worked there on 23 April was Kim Wilde. She described on 23 May 2016 (page 174) some “very inappropriate” behaviour of the Claimant. It included;• talking about his daughter graduating from dance school and wearing “Basques” and dancing provocatively;

• ladies coming in with the “blue scripts” and how “they sell their bodies that’s how they get on the stuff”;

• women running through a store in London naked;

• not getting cuddles from his wife as his son got all the attention;

• telling her and others how they should go to the toilet.

[25]Miss Wilde did not complain at the time, saying that she had just “switched off and stopped listening to him”.

[26]Mr Deakin returned to work at the store again on 21 May. By this time, a new Store Manager, Luke Gardener had started and he received a complaint on 23 May from three of his colleagues, namely;• Julie Levers, Dispenser

• Kim Wilde

• Christina Powell, Relief Dispenser. RESERVED Case No: 2602059/16 Page 9 of 26

[27]The allegations were as follows;(a) Whilst serving an elderly patient, he had said to her “I am flirting with you. I am allowed to as you are in my price range”. The customer had been embarrassed and “shocked” and Mr Deakin then said to justify himself; “Half your age would be 39 and then add 7 that is 46 and I am in my 50s so in my price bracket.” The customer then said; “Well I am glad you explained that” whilst looking shocked and flustered. Mr Gardener was able to see the incident on the CCTV footage and see how flustered she was.

(b) It was alleged that he had engaged in unwanted touching of Miss Christina Powell. It was alleged that the Claimant had looked at her “up and down” and then approached her and said that he would show her some websites that would help her with her university course and, “He pushed his front into my back and lent straight over the top of me to get to the computer, at that I moved to the side quickly, he then pulled away and said I shouldn’t be touching you should I.” and “I best tell Julie what we are doing in here” He then talked to her about his daughter bringing flavoured condoms home with her and how he had tried them out. He also recounted an occasion where he had been in hospital and an elderly lady had been talking to him about how he “couldn’t get it up”. These are noted in the document at pages 172 - 173.

(c) Whilst in the dispensary with Miss Powell he had engaged in unwanted conversation with her which she described as “uncomfortable” and “literally everything he said was about sex or referred to sex”.

[28]Mr Gardener had been handed handwritten notes from Miss Levers (pages 169 - 171) and he had spoken with the three individuals (pages 172 - 174).

[29]The conversations with Christina Powell were about; “His daughter being on the pill and getting drunk.• that she had loads of sex;

• his daughter bringing flavoured condoms home and him trying them out;

• telling a story about a lady being in hospital and her saying “that he couldn’t get it up”.

[30]Rafica Ahmed, General Manager, then undertook an investigation into the allegations and Mr Gardener emailed to her his note (page 175). RESERVED Case No: 2602059/16 Page 10 of 26

[31]On 3 June 2016, Mss Ahmed invited the Claimant to an investigatory interview to discuss the concerns raised. In the interview, he was asked about whether his comments were appropriate and he replied; “In hindsight it probably wasn’t, I will be mindful of not making any comment like this again” (page 184).

[32]He denied having any recollection of touching Christina Powell but said “If I brushed against her I am truly sorry” (page 186).

[33]He accepted discussing “flavoured condoms” and his daughter’s contraception choices and that this was inappropriate (page 191 - 192).

[34]He did not recall talking about the elderly lady in hospital and denied saying it (page 195).

[35]In respect of the lady running through a London store naked, he said that a member of the public had got changed for an interview in the store but not that she had run though the store naked (page 198).

[36]He accepted that he had made the comments about women emptying their bladders and no doing so properly. He described this as “advice” (page 199).

[37]He did not dispute a conversation about his wife being more affectionate to his son (page 200).

[38]He said that he had been stressed on the day due to errors he had found with a controlled drug cabinet. He said that he had reported the errors on the Respondent’s Pharmacy Incidents and Events Reporting System (PIERS). He said that he believed that Miss Levers had been annoyed at him for having made the report and the complaint was made because of that (page 201).

[39]It was correct that he had made a report on the PIERS system. Miss Levers, the dispenser, had insisted upon him completing the report as he had not done it the previous time he had been in attendance at the store. It had taken him 2½ hours to do it and they had had a discussion about the contents of the report, which she disagreed with.

[40]The Claimant went on to say at the end of the interview that when he was stressed he went into “immense detail. I did not say all of the things stated, some of the statements are simply incorrect and some are taken out of context.” He said that he was taking Citalopram and had been reducing the dose. But this kept him calm and less hyper. He said that he did not know if there was a link between Citalopram and the appropriateness and content of the conversations (pages 208-209).

[41]Miss Ahmed decided to suspend the Claimant and a letter confirming his suspension was sent to him on 3 June 2016 (pages 211 - 202).

[42]Miss Ahmed then continued with her investigation and on 14 June spoke to;• Mrs Radford the customer (pages 213 - 214)

• Julie Levers (pages 215 - 223)

• Kim Wilde (pages 224 - 234). RESERVED Case No: 2602059/16 Page 11 of 26

[43]Mrs Radford recalled the Claimant talking about her age and price bracket and said that she had “never experienced anything like it in a shop - let alone Boots”. She said it was not a normal conversation.

[44]Miss Levers explained that she was only working that day because she had not wanted one of the younger dispensers (Stacey) to have to work with the Claimant having done so previously. She had spoken to Christina Powell about the Claimant’s behaviour and particularly the conversations with her and the fact that he had touched her whilst she was working on the computer. She had decided to make her notes because of what Miss Powell had told her.

[45]Miss Ahmed spoke to Miss Wilde. She had described how she had been made to feel uncomfortable and spoke about the conversations she had with him and comments that he had made.

[46]Miss Ahmed interviewed Christina Powell on 18 June (pages 235 - 248). She described the conversations she had with the Claimant and the comments that he had made about his daughter and her sex life and using flavoured condoms. She went on to describe the incident at the computer saying; “Brian came up behind me whilst I was labelling the FRPS. I then felt the whole of his front on my back. I said I could move out of his way, to which he said ‘No you don’t have to’ - this is all while he had his hands out in front on me on the keyboard. I then leaned out of the way otherwise I would fall off the stool.”

[47]Having concluded her investigation, Miss Ahmed took the view that disciplinary action was appropriate (page 249 - 250). She decided to meet with the Claimant again on 24 June 2016 to allow him the opportunity to comment on the statements she had taken as part of the investigations. The notes are at pages 251 - 279). The interview commenced at 14:11 hours and ended at 17:33 hours. It could not possibly be described as a “yes, no interview”. The Claimant admitted in connection with the conversation with Miss Radford, the customer that “it wasn’t the best thing to say” and that it was meant as a “jovial comment”.

[48]He admitted having the conversation with Miss Powell about flavoured condoms but would not comment about the touching of Miss Powell. He said that he had taken legal advice and been told not to comment further until he had a copy of her statement to show his solicitor.

[49]He went on to say that “some things in hindsight not best to say”. He said that Miss Levers had put him on edge at the start of the day because he had gone to the wrong door. She had complained to him about a shortage of staff and she had been annoyed with him taking photos whilst doing the CD balance. He said it had taken him a long time to do this and he had discovered a number of discrepancies. He said he had been extremely stressed when he had the conversations.

[50]He said that he was taking Citalopram and had reduced his dose in the days leading up to the incidents. At the end of the interview Ms Ahmed said that she felt there was sufficient evidence for the matter to proceed to a disciplinary hearing and he was then invited to attend a disciplinary hearing on 4 July. She wrote to the Claimant confirming all this in a letter of 28 June 2016 (pages 280 - 282). The letter contained confirmation of the documents that he had been provided with, including the notes of the interviews with him and those of the complainants. RESERVED Case No: 2602059/16 Page 12 of 26

[51]Mr Stevenson was instructed to undertake the disciplinary hearing. He is an experienced manager of a similar age to the Claimant and had dealt with many disciplinary hearings. He did not know and had never met the Claimant.

[52]The hearing took place on 8 July 2016 and the Claimant was accompanied by David Tyas, PDAU representative. The notes are at pages 284 - 299.

[53]They discussed the Claimant touching Miss Powell. He denied touching her entire back with his front but did say that as he lent forward to reach the keyboard, he brushed against her right shoulder/arm with his left shoulder/arm.

[54]He went on to deny making comments about• female methadone patients

• talking about the customer in London being in bra and pants

• the conversation regarding his son getting attention from his wife.

[55]He said that he had made his comments about women emptying their bladders as medical advice.

[56]They discussed the incident with Miss Radford, the customer. He said that he had responded to her comment of “ooh are you the new manager” by saying “Are you flirting with me”. He went on to admit making the comments about half your age plus 7.

[57]They then discussed the other incidents and the conversation moved to his age and the age of Miss Powell. Mr Stevenson wanted to understand his thinking in having a conversation of the nature he did with someone of Miss Powell’s age. Mr Deakin said that the comments that he had made had been taken out of context and were made to look worse than they were.

[58]They then went on to discuss his mitigating circumstances and how he had felt stressed on the day and that he had been taking Citalopram. Mr Tyas raised the issue of the previous disciplinary hearing in 2014 and the recommendations that had been made, saying that;• he should have been given a course on interpersonal training, and

• he should be store based rather than a relief pharmacist.

[59]Mr Stevenson adjourned to consider what he had heard. He was satisfied that Mr Deakin had deliberately chosen stories to embarrass colleagues and place them at unease. In his view, the subject matter of those conversations was totally inappropriate for work, even if they had been taken out of context (which he did not believe they had).

[60]In respect of Miss Radford, he accepted the Claimant had intended to be humorous but was satisfied that his comments were ill judged and reckless given he did not know the patient and admitted that he had issues judging some interpersonal conversations. He was a pharmacist with extensive experience in dealing with patients and colleagues and his behaviour on all counts was totally inappropriate.

[61]He took into account the Claimant’s mitigation. He was satisfied that the behaviour could not be excused because he was suffering stress from carrying out the checks and the PIERS report. Mr Stevenson was satisfied that the complaints were genuine and not made because he had submitted a report on RESERVED Case No: 2602059/16 Page 13 of 26 PIERS or taken photos of what he considered to be unacceptable practices. He did not believe the Claimant and believed he had tried to excuse his actions by saying that they were in response to others.

[62]He considered whether the Claimant’s medication, or the reduction in dose of it at that time, had an impact upon his behaviour and he did not believe that it did. Mr Stevenson was a pharmacist himself. Mr Stevenson told us that he did not need to refer the Claimant to occupational health because there was nothing for occupational health to investigate.

[63]He took into account that the Claimant had been warned about his inappropriate behaviour before and whilst he checked Mr Deakin’s records he could not find any record of the specific recommendations referred to by his representative. On the contrary, Mr Stevenson felt that the previous disciplinary proceedings had highlighted issues with his behaviour and he had willingly carried on in engaging in inappropriate conversations in the full knowledge that he had had similar issues in the past.

[64]Mr Stevenson took the view that summary dismissal was appropriate and his letter confirming this is at pages 302 - 305.

[65]The Claimant received the letter of 23 July and appealed against the decision on 26 July (page 306). The grounds of his appeal were;• the sanction was too harsh under all the circumstances;

• Mr Stevenson had not properly considered all the evidence and taken into account his mitigation;

• his conclusions were unsupported by the evidence and he had failed to explain how he had reached his decision;

• the Company had previously described him as vulnerable and lacking in self awareness. He was told that he would get help but this had not materialised.

[66]On 17 August, Kerry Wayt wrote to the Claimant to arrange the appeal meeting, which would take place on 23 August 2016 (pages 314 - 315). The notes of the meeting are at pages 315a - 315y. The Claimant was represented this time by Mr Mark Pitt, another experienced Trade Union representative. We are satisfied that Miss Wayt had not received the grounds of appeal document, which is at pages 307 - 313. The document is not referred to in the appeal minutes and Mr Pitt cannot be sure that he handed him the document. Miss Wayt does not believe that she had the document and we are satisfied that she did not.

[67]Miss Wayt explained that the Claimant would not receive an outcome that day as further investigation was necessary. They agreed that there was no need for a further meeting (page315a).

[68]Mr Pitt referred to the notes of 2014 disciplinary hearing, which she had not seen before. The Claimant said that he had received some training from Colin Dolby and given the document which is at pages 332 - 334.

[69]Miss Wayt asked him, in respect of the Miss Powell incident, why he had not been able to recollect what had happened when he was interviewed by Miss Ahmed nine days after the incident but had been able to recall in detail what had happened six weeks later in his disciplinary hearing and during their meeting. He said he did not think it was significant at the time but he had later thought it RESERVED Case No: 2602059/16 Page 14 of 26 through. He then went through his version of events. He said he had been standing close behind her and contact was made with her when he went for the mouse. Contact made was only with his arm and shoulder. He said it was not a deliberate incident and he had apologised

[70]He claimed that the staff had embellished matters together and that there had been no urgency in speaking with staff after their initial complaints.

[71]He said that he had been stressed about the PIERS report and that Miss Levers had been angry about him making the report and asked him not to do so.

[72]He talked about the various comments and in respect of the comments he made about the female methadone patients being prostitutes, he said that it was not him that had said it but that it was Kim. He was asked why he had not mentioned this before. No explanation was given.

[73]Mr Pitt said that the Claimant had conversations on a whole variety of topics during the 8 hours day. These had been “cherry picked and taken out of context”. He said the allegations were not reliable.

[74]Miss Wayt asked him why he could not recall certain matters when he was interviewed as part of the initial disciplinary process but could then recall things with much more clarity later on. He complained that Miss Ahmed’s interview style had not allowed him to do so. She was aggressive and had “barked her way through the interview”.

[75]With respect to Miss Radford, he said that “In hindsight, it was not the best thing to say” and he also deeply regretted the conversation about the condoms.

[76]Mr Pitt raised issues about other senior individuals making comments and the Company “turning a blind eye” yet in respect of the Claimant, they were “throwing the book” at him. He said that some senior members of management had been posting what he considered to be inappropriate material on social media and produced the documents at pages 340 - 368.

[77]At the conclusion it can be seen from the notes at page 315y that Mr Pitt said; “Appreciate KW will need to do further investigations and ask that investigations and statements are shared with BD when decision comes out.”

[78]Miss Wayt then carried out her further investigations. She first spoke to Liz McPherson to understand that she meant in the 2014 disciplinary hearing when she described the Claimant as “vulnerable”. She responded that; “He has no insight whatsoever into his own behaviour or his impact on others. He believes that because he means no offence, that no offence has been caused, and none should be taken. In the situation I dealt with I felt that a disciplinary sanction was the only way that Brian would realise that he had to change or he would be vulnerable to another incident occurring, that there was a high risk of him being in a similar situation again, which is of course exactly what has happened. I certainly didn’t see Brian as weak or a person who was vulnerable to anyone in Boots rather he was a risk to himself” (Page 381). RESERVED Case No: 2602059/16 Page 15 of 26

[79]Miss Wayt then spoke to Mr Dolby over the telephone on 26 September 2016 (pages 382 - 384). He explained that there had not been any workshops available and he had spent about an hour with the Claimant coaching him. He had not been contacted further by the Claimant for any extra support.

[80]Miss Wayt wrote to Mr Stevenson with some specific questions about his findings and his replies are at pages 385 - 386.

[81]Miss Wayt met with Miss Powell and went though a series of questions (pages 386a - b). The notes of the discussion are at pages 387 - 391. She confirmed that Mr Deakin had approached her from behind and bent over her. His front had pressed into her back. She said that he had not needed to be so close to her and had invaded her personal space. He had made her feel “very uncomfortable”. She said he had been “over friendly “and discussed his daughter’s sex life in great detail

[82]Miss Wayt spoke on the telephone to Miss Ahmed on 12 October (pages 392 - 394). She denied being aggressive or that it had been a yes, no interview.

[83]Miss Wayt met Miss Levers on 12 October 2016. The questions she asked are at page 395 and the responses are at pages 396 - 400. She said that she had felt uncomfortable by Mr Deakins’ behaviour and that Ms Powell had been upset by him.

[84]Miss Wayt also met with Toni Bonser on 12 October 2016. She had not been interviewed initially but described the incident regarding the emptying of her bladder. The notes are at 401 - 402.

[85]Miss Wayt then met with Luke Gardener and prepared her questions in advance (page 403). His responses are at pages 404 - 406. He said that he believed that matters had not been escalated after 23 April 2016 because there was no store manager in place at the time. He had started a week later and when staff had been uncomfortable with the Claimant’s behaviour again on 21 May 2016, he decided to take the matter further.

[86]Miss Wayt then interviewed Kim Wilde (pages 407 - 413). She said that she had not complained initially because she had not dealt with this type of situation before. She denied saying that methadone patients sell their bodies and went on to explain the Claimant’s behaviour again.

[87]Miss Wayt conducted a further review of all the evidence before her. She did not feel it was necessary to send a copy of the interview notes to the Claimant as there was nothing new that had been revealed. Indeed, it had been agreed with Mr Pitt that she would not do so. She considered the Claimant’s grounds of appeal. She was satisfied that she could not uphold any of them. In her view, the Claimant had acted in a manner that could not be tolerated in the workplace and summary dismissal was the only appropriate sanction. She set out her reasons for arriving at that decision in full in her outcome letter, which is at pages 414 - 421. In particular, she was satisfied;87.1 That the sanction applied was appropriate and the allegations against him were true.

87.2 She agreed on every point with Mr Stevenson that the incidents were unacceptable. That he had instigated them and that they were deliberate. This was not a one-off incident but was evidence of repeated behaviour.

87.3 The Company had described him previously not as vulnerable but RESERVED Case No: 2602059/16 Page 16 of 26 that his behaviour made him “vulnerable to future incidents” This was not mitigation. He had been given appropriate support and guidance.

87.4 Mr Stevenson had given proper weight and consideration to his points of mitigation.

87.5 Mr Stevenson had explained why he preferred certain evidence against Mr Deakins’ own evidence. There was a consistency to the witness statements made by the staff regarding the use of sexualised language by Mr Deakin and a consistency of sexualised topics that Mr Deakin had initiated. She agreed with Mr Stevenson that his reasoning was sound and credible.

[88]Whilst conducting the appeal, she had satisfied herself that she believed that the allegations were true and the appropriate sanction had been given. She considered alternatives to dismissal but there were none. She said: “I cannot allow you back into an environment that is almost entirely female believing this to be true”. The law Unfair dismissal

The law

[89]The Claimant makes claims under both Section 94 and Section 103A Employment Rights Act 1996 (ERA).

[90]Section 98 ERA provides: “98 General.(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.” RESERVED Case No: 2602059/16 Page 17 of 26

[91]It can be seen, therefore, that:• it is for the Respondent to show that the reason for the dismissal was potentially fair and fell within Section 98(1)(b).

• if they do so, the burden of proof is neutral in determining fairness or unfairness within Section 98(4).

[92]Mr Maxwell referred us to the guidance in BHS -v- Burchell

[1980] ICR 303

. The questions to be asked are:92.1 Did the employer have a genuine belief that the employee was guilty of the misconduct?

92.2 Was that belief based on reasonable grounds?

92.3 Was it reached after a reasonable investigation?

[93]We must be satisfied that a fair procedure was followed and the misconduct was sufficient to justify the dismissal of the Claimant. Our function is to review the reasonableness of the employer’s decision and not to substitute our own view. As per the case of Iceland Frozen Foods -v- Jones

[1983] IRLR 439

, the question is whether the decision to dismiss fell within the band of reasonable responses. We have to decide whether a reasonable employer may have considered it sufficient to justify dismissal. We were also referred to the case of Sainsbury’s Supermarkets -v- Hitt

[2003] IRLR 23

which reminded us the band of reasonable test applies as much to the Burchell criteria as it does to whether the misconduct was sufficiently serious to justify dismissal.

[94]We were referred also to the case of A -v- B

[2003] IRLR 405

. That case reminded us that the level of care required of the reasonable employer carrying out an investigation must reflect the gravity and seriousness of the alleged misconduct, especially where the alleged misconduct is of very serious character and may impact of the employee’s ability to carry on their chosen profession.

[95]The case of Salford Royal NHS Foundation Trust -v- Roland

[2010] IRLR 721

said that the fact finding exercise of the reasonable employer must also take account of gravity and seriousness.

[96]The whistleblowing dismissal claim is made under Section 103A ERA, which provides: “103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[97]The making of a protected disclosure involves three elements. Firstly, there must be a “disclosure”. Section 43B(1) says: 43B Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information ...”

[98]Secondly, the disclosure must be “qualifying”, which is determined by the content of the information disclosed. Section 43B(1) goes on to provide the RESERVED Case No: 2602059/16 Page 18 of 26 categories of disclosure, namely: ... (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, ... (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

[99]The qualifying disclosure must be made to a specified recipient, within Sections 43C - H ERA, which includes at 43C, the employer.

[100]Mr Maxwell then went on to talk about tainted information. He told us that whilst in most cases the employment tribunal will decide on the employer’s reason for dismissal by considering what was in the mind of the dismissing officer. A broader enquiry into the reason for dismissal may be permissible where that person has been manipulated by another motivated by an inadmissible reason such as that a protected disclosure has been made. He referred us to the case of Royal Mail Group Ltd -v- Jauti

[2016] IRLR 854

. Wrongful dismissal

[101]It was agreed at the start of the proceedings that it was the Respondent who has the burden of proof; The Respondent must show that the Claimant was guilty of gross misconduct and that they were entitled to dismiss him without notice because he had committed a fundamental breach of his contract of employment.

[102]Mr Maxwell referred us to the case of Tullett Prebon plc -v- BCG Brokers LLP

[2010] IRLR 648

. Whilst the universal standard of proof applies, what is required to satisfy the same will depend upon the gravity of the allegations made? Where, for example, it is alleged that an employee has committed gross misconduct of a sort which is said to undermine his fitness to carry on his profession, then particularly cogent evidence will be required.

[103]Mr Maxwell also referred us to the case of Dunn -v- AAH

[2010] IRLR 709

which commented on the character and quality of the conduct which may amount to gross misconduct and entitle the employer to summarily dismiss. Discrimination claims Burden of proof

[104]Section 136 of the Equality Act 2010 (“EA”) provides: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. RESERVED Case No: 2602059/16 Page 19 of 26 ...”

[105]Mr Maxwell referred us to a number of cases that deal with the burden of proof, namely:• Igen Ltd -v- Wong

[2005] IRLR 258

• Laing -v- Manchester City Council

[2006] IRLR 748

• Madarassy -v- Nomura

[2007] IRLR 246

• Martin -v- Devonshires Solicitors

[2011] IRLR 352

Direct discrimination

[106]This claim is made under Section 13 EA: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ...”

[107]Less favourable treatment than the Respondent would treat others means that the tribunal must refer itself to a comparator. Section 23 EA provided: “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case....” Discrimination arising from disability

[108]Section 15 EA provides: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (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.”

[109]We were referred to paragraph 5.6 of the Equality and Human Rights Commission; Equality Act 2010 Code of Practice on Employment, which provides: “Both direct and indirect discrimination require a comparative exercise. But in considering discrimination arising from disability, there is no need to compare a disabled person’s treatment with that of another person. It is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability.” RESERVED Case No: 2602059/16 Page 20 of 26

[110]As Mr Maxwell pointed out, proportionality requires a balance to be struck between the discriminatory effect and the reasonable needs of the business, and relevant to striking that balance will be a consideration of;110.1 the nature and extent of the discriminatory impact upon the Claimant and/or others;

110.2 the more serious the impact, the more cogent must be the justification;

110.3 whether the employer’s aim could have been achieved by less discriminatory means” Failure to make reasonable adjustments

[111]Section 20 EA provides: 20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. ... (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ...”

[112]Mr Maxwell referred us to a number of cases, namely:• Environment Agency -v- Rowan

[2008] IRLR 20

• Royal Bank of Scotland -v- Ashton

[2011] ICR 632

• Secretary of State for Work and Pensions -v- Wilson [2009]

UKEAT/0289/09

• Romec Ltd -v- Rudham [2007]

UKEAT/0069/07

Harassment

[113]Section 26 EA provides: 26 Harassment (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. .. RESERVED Case No: 2602059/16 Page 21 of 26 (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...”

[114]Mr Maxwell then went on to refer us to a number of cases, namely:• Regina (Equal Opportunities Commission) -v- Secretary of State for Trade and Industry

[2007] ICR 1234

• Nazir -v- Asim

[2010] ICR 1225

• Timothy James Consulting Ltd -v- Wilton [2014]

UKEAT/0082/14

• Richmond Farm Pharmacology -v- Dhaliwal

[2009] IRLR 336

Our conclusions Unfair dismissal claims

[115]The Respondent has established that the reason for the dismissal related to his conduct, namely:115.1 He had made unwanted physical contact of Christina Powell on 21 May 2016.

115.2 He had created an intimidating, degrading, humiliating, offensive and unprofessional environment on 23 April 2016 and 21 May 2016. He had talked about his daughter’s sexual orientation and had other conversations of a sexual nature which caused embarrassment and disgust to three colleagues who he had just met for the first time.

115.3 He had made inappropriate comments in conversation towards a patient who was a regular customer at the store and made this customer feel uncomfortable and resulted in a complaint from her.

[116]We are satisfied that these were the principal and indeed only reasons for the Claimant’s dismissal and therefore his claim under Section 103A EA fails and is dismissed.

[117]We are satisfied that both Marshall Stevenson and Kerry Wayt had a genuine belief that the Claimant had committed the acts of misconduct complained of. They had reasonable grounds for that belief.

[118]Mr Stevenson and Miss Wayt had the benefit of four witnesses who each gave convincing evidence that the Claimant had carried out the acts complained of. The Claimant tried to discredit those witnesses by saying that they had been “gossiping” and that they were “lying”. None of these witnesses knew the Claimant and they had no motive for lying to those who interviewed them. Unlike the Claimant, they gave consistent evidence of what happened. The Claimant himself admitted coming into contact with Miss Powell, making inappropriate remarks to his female colleagues and also to the customer, Mrs Radford. RESERVED Case No: 2602059/16 Page 22 of 26

[119]Mr Maxwell points out that in the dismissal letter (page 303), there was no mention that the physical contact between the Claimant and Christina Powell was deliberate. What Mr Stevenson did find (page 303) was; “Whilst the extent, and intent, of the physical contact differ in the versions given by yourself and Christina I do find, on balance, and taking into account your description of this incident, that there was unwanted physical contact made by you. I believe it is significant that when this incident took place you were standing behind Christina whilst she was sitting, with her back to you at a computer.”

[120]Whilst it may not have been well put in the letter, we are satisfied with Mr Stevenson’s account that he was satisfied that Mr Deakin had intended to make unwanted physical contact towards Christina Powell on that day. We are not satisfied that it was simply a matter of Mr Stevenson seeking to “firm up” his finding.

[121]We do not agree with Mr Maxwell’s contention that he did not have reasonable grounds for making such a finding. In particular:121.1 Christina Powell’s account of the incident was consistent that the Claimant had reached over her whilst she was at the computer. She said that he had pressed the front of his body against her. The fact that he apologised in Mr Stevenson’s view did not mean that he did not deliberately make contact with her.

121.2 The Claimant’s accounts of the events were inconsistent as described in our findings of fact.

121.3 We do not accept that Christina Powell’s account became “more vivid (but less accurate) each time she gave her account”. Christina Powell’s accounts on 21 May 2016, 23 May 2016 and 18 June 2016 are not inconsistent with each other. They all amount to the same event, i.e. the Claimant reaching over her and touching her with his front on her back.

[122]As to the Claimant’s inappropriate conversations, as Mr Maxwell pointed out there was a large measure of common ground and Mr Deakin himself accepted that the conversations were inappropriate. The term that the Claimant repeatedly used was that they were “low level”. We are satisfied that the comments are either “appropriate” or “inappropriate”. These comments were inappropriate.

[123]Mr Stevenson found that the conversations were not “innocently generated or flowed naturally from ongoing conversation”. They were deliberately chosen to cause embarrassment and unease to his colleagues. In our view he was entitled to come to that conclusion.

[124]With regard to the comments and conversation with the patient/regular customer, Mr Stevenson found that whilst intended as humorous, it was “Ill judged and reckless”. The evidence before him entitled him to draw that conclusion.

[125]We do not agree with the contention by Mr Maxwell that there were no reasonable grounds for Mr Stevenson finding that the Claimant intended to embarrass and cause his colleagues to feel unease. Whether or not the RESERVED Case No: 2602059/16 Page 23 of 26 complainant said or implied that his intentions were so is not the question. It was Mr Stevenson’s view, having heard the evidence, that the conversations had plainly been intended to cause that embarrassment and he clearly did not accept the contention by the Claimant that he had no intended to cause embarrassment.

[126]Similarly, Mr Maxwell makes reference to the threshold about the second allegation. He says that having set the bar at the high level they did, that Mr Stevenson and Miss Wayt did not have reasonable grounds for supporting such a finding. What Mr Stevenson found, and this was supported by Miss Wayt in her findings, was that the Claimant deliberately chose stories to cause embarrassment and unease of his female colleagues. We are satisfied that Mr Stevenson and Miss Wayt were entitled, on the evidence before them, to make such findings.

[127]We are satisfied that in making their findings, Mr Stevenson and Miss Wayt, together with Miss Rafiq Ahmed, had carried out a reasonable investigation. We do not agree with the contention that Miss Ahmed:• adopted an aggressive approach when interviewing the Claimant;

• repeatedly pressed the Claimant for detail;

• asked questions which tended to imply her disbelief;

• returned to the same issues repeatedly;

• interviewed the Claimant at great length;

• did none of the above with respect of the complainant’s witnesses;

• intentionally build a case against the Claimant.

[128]From our examination of the investigation, we are satisfied that Miss Ahmed did spend a great deal of time in interviewing the Claimant but that the length of time was appropriate bearing in mind the extent of the allegations that she was investigating and that her interview style was entirely appropriate. It was suggested to us that it was on a “yes or no” basis. It can be seen from the interview notes though that this was not the way in which the interview was conducted.

[129]Not only did Miss Ahmed carry out a thorough and reasonable investigation but it can also be seen that Mr Stevenson and Miss Wayt themselves carried out investigations into the circumstances.

[130]The Claimant also complains that he should have been referred to occupational health once he had informed Miss Ahmed about his health problems and anxiety. We do not agree that there was any necessity to make a referral to occupational health. There was no evidence that the inappropriateness of his conduct had anything to do with health problems he may have encountered.

[131]This tribunal is satisfied that dismissal fell within the band of reasonable responses. We do not agree that the matters found against the Claimant were “not so serious as to amount to gross misconduct”. In any event, that is not the question for us. In this case, we are satisfied that Miss Wayt and Mr Stevenson considered the mitigation that was presented to them, including the fact of his disciplinary record and Miss Wayt in particular considered alternatives to dismissal. There is no evidence in our view that the sanction imposed was “manifestly excessive, unreasonable and far outwith the band of reasonable responses”.

[132]Mr Maxwell argues that the Claimant’s behaviour did not even merit any disciplinary sanction at all, that he should have received management advice and RESERVED Case No: 2602059/16 Page 24 of 26 support. We are satisfied in this case that the behaviour as found by Mr Stevenson and Ms Wayt did mean that the dismissal fell within the band of reasonable responses. In particular:• the Claimant was a senior employee;

• he is a professional pharmacist;

• he is older, more experienced and more senior than those employees he was working with;

• he had never met those employees before.

[133]Mr Stevenson and Miss Wayt were entitled to find that the conversations and his behaviour were “highly inappropriate and unprofessional”.

[134]Furthermore,• he was aware of the Dignity at Work Policy;

• he had received training;

• he had previously received guidance in respect of his behaviour;

• he had wilfully carried on with his behaviours;

• he had no regard for the people he was offending.

[135]In these circumstances, dismissal fell within the band of reasonable responses. Wrongful dismissal claim

[136]Having heard the evidence, we are satisfied that the Claimant had committed a fundamental breach of his contract of employment in that he had committed acts of gross misconduct and that the Respondent was entitled to dismiss him without notice.

[137]Whilst we did not hear evidence from those who complained about the Claimant, we did hear evidence from Mr Stevenson and Miss Wayt who were able to tell us what the witnesses told them. We have also heard evidence from the Claimant and are satisfied that his evidence is not reliable. We do not agree that the Respondent, having elected not to call witness evidence in support of its defence to the Claimant’s claim, that it is bound to fail in proving the same.

[138]Having heard all the evidence, we are satisfied:138.1 that the Claimant had made unwanted physical contact towards Christina Powell;

138.2 that in talking about his daughter’s sexual orientation and other conversations of a sexual nature he caused embarrassment and disgust to three female colleagues who he worked with and did not know.

138.3 that he made inappropriate comments in a conversation towards an elderly patient and regular customer of the store who was made to feel uncomfortable.

[139]In the circumstances, therefore, his claim of wrongful dismissal fails and is dismissed. Discrimination arising from disability

[140]We note that the Respondent concedes that the Claimant was at the material time a disabled person by reason of his mental impairment of anxiety. We have no evidence that the anxiety had anything to do with the inappropriate conversations with his colleagues or the customer. Having heard the evidence, RESERVED Case No: 2602059/16 Page 25 of 26 we are satisfied that there are no primary facts from which we could conclude that the conduct for which he was dismissed, or at least the greater part of it, was something arising in consequence of his disability. In any event, even if it had been the Claimant’s dismissal was justified. It is a legitimate aim of the Respondent that their employees should treat both colleagues and customers with appropriate respect and not conduct themselves in the manner in which this Claimant did.

[141]We do not agree that no account was taken of his condition. The Claimant’s mitigation was taken into account by both Mr Stevenson and Miss Wayt.

[142]So far as finding the Claimant a single store, we are satisfied that there is no evidence to support the contention that the Claimant working in a single store would have any bearing on his behaviour. Failure to make reasonable adjustments

[143]The claim here relates to:143.1 The PCP of adopting an accusatory approach in the disciplinary hearing. In that respect, we do not agree that such an approach was undertaken. The questioning of the Claimant during the disciplinary process was appropriate and there is no evidence to show that he found the answering of questions difficult or onerous. In our view, there was no necessity for there to be any referral to occupational health.

143.2 Requiring the Claimant to work as a relief pharmacist. There is no evidence to support the contention that the Claimant’s behaviour amounted in any way to simply “social clumsiness”. In his position as a pharmacist, he would regularly come into contact with new people who were new customers at any store that he worked at and there is no evidence that placing him in a single store would have made any difference to his behaviour.

[144]The claims of failure to make reasonable adjustments also fail. Direct age discrimination

[145]The dismissal of the Claimant had nothing to do with his age. It did not amount to direct age discrimination. There is no evidence that a younger person than the Claimant would not have been dismissed. The issue of his age was raised during the process. It was entirely appropriate for his age to be referred to in the process. He was a 58 year old man talking to women of his daughter’s age about sexual matters which were inappropriate. This is not age discrimination and that claim fails and is dismissed. Direct sex discrimination

[146]His dismissal had nothing to do with his sex. The Claimant was dismissed because of his conduct. The reference related to he is a man having inappropriate conversations with his colleagues who were all women. There is no evidence that if the Claimant had been a woman, he would not have been dismissed. RESERVED Case No: 2602059/16 Page 26 of 26 Harassment

[147]The Claimant has not suffered harassment. He was the perpetrator of harassment to his colleagues and a customer. The behaviour of the Respondent towards him was appropriate and did not amount to “unwanted conduct related to the relevant protected characteristic”. The conduct amounted to an investigation of his behaviour and did not violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. That claim fails and is dismissed. Protected disclosure detriment

[148]The protected disclosure relied on is the making of the PIERS report. There is no evidence that the Claimant suffered any detriment because he had made the protected disclosure. What was complained of was that there was a lack of objectivity in the investigation and disciplinary process. We do not agree that there was any lack of objectivity in the investigation and disciplinary process. Matters were dealt with appropriately and that claim also fails and is dismissed. Holiday pay

[149]Having heard evidence from the Claimant we are satisfied that he was entitled to 8.75 days accrued holiday pay for the period from 1 April 2016 to 23 July 2017, which was the effective date of termination of his employment. We are satisfied that he took 2 days holiday. That in November 2015 he completed a holiday request form for 4 weeks holiday during the holiday year 1 April 2015 to 31 March 2016 and that two of those days fell into the holiday year 2016/2017. This request was approved. This amounted to an authorisation that the days could be rolled over into the next holiday year. He did not need any extra authorisation. We are satisfied that a further day was taken in respect of the Easter bank holiday Monday which for the year 2016/2017 actually fell in March 2016.

[150]We are therefore satisfied that the Claimant only took two days of his holiday entitlement and he is entitled to 6.75 days at his gross pay of £172.86. The total due is therefore £1,167.02 gross. _____________________________ Employment Judge Hutchinson Date: 23 August 2017