Employment Judge GrubbMichale Raffel (instructed by Solicitor) for claimantKelly Faulkner (instructed by Solicitor) for respondentDate 26 June 2024
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded. This means the respondent did not unfairly dismiss the claimant contrary to section 94 of the Employment Rights Act 1996. JUDGMENT having been sent to the parties on 08/07/2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Issues
[1]The Claimant, Mr John Sutton, was employed by the Respondent as a Post Person (also referred to as Operational Post Grade or OPG) from 1995 until his dismissal on 26th September 2023. He was dismissed for gross misconduct for physically assaulting another college, who I shall refer to as “Mr Y” at around 13:00 on 15th August 2023. ACAS conciliation took place on 19/09/2023 until 25/10/2023 and the Claim was issued on 07/01/2024.[2]The Claimant says that the decision to dismiss was disproportionate and unfair.[3]The Claimant agrees that the principal reason for his dismissal was his conduct and so is a potentially fair reason. It was agreed at the outset of the hearing that the central question for me in this claim is whether the Respondent acted reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant?[4]The Claimant relies on the following grounds for saying his dismissal was outside the range of reasonable responses and so it is these issues that need to be considered a That it failed to properly take into account relevant factors including: i The Claimant’s health issues at the time of the incident, ii The Claimant’s 28 years of service, iii His clean track record, iv That the victim, Mr Y had specifically said he did not want the Claimant to be dismissed, v The Claimant’s acknowledgment of wrongdoing and remorse i The surrounding circumstances of the incident. The Claimant says that altercation with Mr Y was about Mr Y’ sexual harassment of a vulnerable former colleague at a works social evening on 29th July 2023. ii That he had been treated inconsistently to other employees who had behaved in a similar manner.[5]The Claimant also says that the Respondent referred to the Claimant by the wrong name in the disciplinary appeal decision document. Indicating a lack of proper consideration of the circumstances of his particular case.[6]During the hearing a further question arose as to whether Mr Rostron carried out a proper re-hearing for the appeal as was required by the National conduct procedure agreement or whether he simply reviewed the original decision to summarily dismiss.[7]Regarding the findings of fact, the Respondent has not contested the Claimant’s account of events on 29th July 2023, which involves an allegation that Mr. Y harassed a colleague. The judgment below is therefore based on the Claimant’s version of Mr. Y's behaviour. However, it is crucial to understand that Mr. Y has not provided any evidence in this case and has not had the opportunity to present his side of the story. Accordingly, the judgment should not be interpreted as a determination by the tribunal that Mr. Y acted in the manner described by the Claimant.[8]There is however some factual dispute about what happened during the assault on 15th August 2023 and subsequent investigation that needs to be addressed. Polkey[9]If I do find that the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the Claimant would have been dismissed had a fair and reasonable procedure been followed or whether the Claiamnt’s compensation should be reduced by reason of contributory fault. Procedure 4. The hearing was conducted wholly remotely via CVP. 5. The tribunal had before it the following documents: a Hearing bundle of 233 pages. b Also received late evidence from the Claimant amounting to 8 pages of health records confirming that he was being diagnosed with type II diabetes the month preceding the incident. There was no objection from the Respondent to this being admitted. They were clearly relevant to the matters in issue between the parties and so I decided to admit the same. c I also had sight of witness statements from: i The Claimant John Sutton ii His brother Daniel Sutton iii James Tully, Network Window Lead in the Anglia region, who conducted the original disciplinary procedure and took the decision to dismiss the Claimant iv Alan Rostron, independent case manager at bishops Stortford, who conducted the Claimant’s appeal against dismissal. Background 7. The facts in this matter are not largely in dispute. At the time of his dismissal the Claimant had served at the Royal mail for around 28 years. 8. On the night of 29th July 2023, the Claimant attended a former colleague’s leaving do with other members of the Brentwood delivery office branch. Also, in attendance was a former female colleague who the claimant had supported at work in his capacity as a mental health first aider. This former female colleague suffered from poor mental health and anxiety. 9. Also in attendance was Mr Y. Throughout the evening Mr Y pressured this former female colleague to drink shots while tipping his shots on the floor. Mr Y also followed this lady around making advances at her. Despite her making clear on several occasions to Mr Y that he should leave her alone and she was not interested, he did not leave her alone. The Claimant put himself between her and Mr Y on the dancefloor to try and give her some distance from Mr Y. He also sent her a message with words to the effect to ditch those she was with and come home with him for a good time. All of this made this woman uncomfortable, to the extent that she asked the Claimant and others who was with not leave her alone with Mr Y.
Background
[10]The Claimant planned to discuss this conduct with Mr Y on return to work. Mr Y however did not return to work until 15th August.[11]On 15th August, the Claimant arrived at around 6:30 am. He ate something at around 7 in the morning. He went on his delivery duties at 9:30 and then returned to the delivery office.[12]Around the time that these matters took place the Claimant was being investigated and was subsequently diagnosed with type II diabetes which he now controls by way of diet.[13]At approximately 13:00 the Claimant was waiting for his brother Daniel to finish his shift. He was standing next to his brother at his frame. As he was waiting, Mr Y came through the door. The Claimant walked over to Mr Y. He says he asked Mr Y about the text that made the lady uncomfortable. Mr Y said words to the effect that he did not know what the Claimant was talking about. The Claimant then assaulted Mr Y.[14]The Claimant was suspended on 16th August 2023 pending investigation.[15]Mr Y was interviewed by Gary Williams on 19th August 2023. His version of events was as follows: “I walked into the office, I walked through the main doors he was on the left hand side by the frame sitting with Danny. As I walked passed, he stopped and angrily said what’s all that about I can’t recall the exact words. I turned and said what are you talking about mate, he said something along the lines of don’t play dumb don’t act dumb, I said I don’t know what’s going on he grabbed me by the throat I dropped the perstorps that I was carrying I stumbled and managed to break free not too sure whether I pushed him away or if Danny his brother pulled him off me. After that he came at me again and grabbed me by the throat with both hands and I moved backwards toward the DBF again he was pulled back, but I may have pushed off, I cannot recall as it all happened very quickly. I then stepped back. I thought he was going to throw a punch. His brother then pulled him away and I walked upstairs to speak to Dennis. One thing I can say for sure is that I didn’t antagonise the situation any more I made distance and came upstairs.”[16]When asked how it made him feel Mr Y said it made him feel angry.[17]When Gary Willliams asked whether there was anything else that he should be made aware of Mr Y said the following: “I don't want to see anyone lose their job and I am not aware of the procedure, I just wanted this to be on record. Regardless of what he has done I do not want to see him lose his job for a momentary lapse; I reported the incident due to safety concerns. I would request that he does not get dismissed. I don't want to see him lose his job or be moved to the office as I believe in second chances.”[18]Mr Williams also interviewed Daniel Sutton on 19th August 2023.[19]The Claimant was interviewed by Gary Williams on 21st August 2023 and the notes of the interview were sent to him for correction and comment on the same day. The Claimant outlined what happened on the evening of the 29th July that led up to the assault. No follow up questions about that were asked by Mr Williams.[20]Following these investigations the Claimant was charged with Gross Misconduct for violent behaviour in the workplace; physical assault of colleague on the sorting office floor. The Claimant was invited to attend a formal conduct interview on 5 September 2023, which was conducted by James Tully. Mr Danny Atfield attended as Union representative.[21]As part of the evidence presented at the hearing the Claimant presented a letter sent to Barry Kinnear from Ross Hubbard About Mr Y’ conduct on 29th July.[22]Following the conduct interview, James Tully concluded that the Claimant’s conduct warranted dismissal without notice and the Claimant was informed of this on 26th September 2023 via teams call and letter of the same date.[23]By letter dated 27th September, the Claimant appealed that decision citing the following grounds: a Disproportionate penalty. b All mitigating circumstances including antagonism/provocation faced when challenging a very serios matter for sexual harassment not taken into account. c 28 years of unblemished record.[24]Mr Rostron was appointed to hear the Claimant’s appeal and wrote to him on 3rd October 2023 informing him of his appeal hearing on 12th October 2023.[25]As part of the additional evidence the Claimant submitted letters from several people including 39-character references who included a detective constable, detective sergeant, people the Claimant has known for over 15 years in a personal capacity from a local darts team he participates in and organising grass roots football. Over 10 colleges, many of which he has worked with for over 20 years. All states what a kind, considerate and gentle man the Claimant is and how the incident was described to them seems hugely out of character.[26]A comparator case was also put forward of Mr C who in November 2021 was given a suspended dismissal. In this case Mr C had grabbed a colleague by the collar.[27]Following this hearing the Mr Roston decided to not uphold the appeal. Law 16. The burden lies on the employer to show what the reason or principal reason was, and that it was a potentially fair reason under section 98(2). 17. Where the employer has shown that the reason was for a potentially fair reason then the tribunal will need to determine whether the employer acted fairly. The question of fairness is determined by section 98(4) ERA 1996 and states that whether the dismissal is fair or unfair: “(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.” 18. One factor to consider is the ACAS Code of Practice on Discipline and Grievance Procedures. It is also important to take account of the whole process including any appeal: Taylor v OCS Group Ltd [2006] IRLR 613.19. It is important that in carrying out this exercise the Tribunal must not substitute its own decision for that of the employer. Instead, the Tribunal needs to consider whether the Respondent’s actions and decision fell within the range of reasonable responses that a reasonable employer might have adopted.20. Guidance on questions to consider was given in the case of British Home Stores v Burchell [1980] ICR 303, and reaffirmed in Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, the questions for the Tribunal are: a Did the employer genuinely believe that the claimant was guilty of misconduct? b If so, was that belief based on reasonable grounds? Was the view that there was misconduct is a within the band of reasonable responses? c Had the employer carried out such investigation into the matter as was reasonable? reasonable responses. d Did the employer follow a reasonably fair procedure? Whether the employer followed its own procedures is a relevant factor here. e If all those requirements are met, the tribunal needs to stand back and consider whether it within the band of reasonable responses to dismiss the claimant rather than impose some other disciplinary sanction such as a warning?21. Even where there is an express disciplinary rule saying that violence may lead to dismissal without warning, employers cannot assume that dismissal for breach of it will necessarily be fair. Such dismissals must still be reasonable in all the circumstances under s. 98(4) of the Employment Rights Act 1996 (ERA). This is illustrated by the EAT’s decision in Taylor v Parsons Peebles NEI Bruce Peebles Ltd 1981 IRLR 119, EAT, where a tribunal was held to have erred in law in finding that the employer acted reasonably in dismissing an employee with long service and good conduct for striking a fellow worker — simply because the company’s disciplinary rules laid down that such an offence would lead to dismissal. “The proper test”.. “is not what the policy of the… employers was but what the reaction of a reasonable employer would have been in the circumstances. That reaction would have taken into account the long period of service and good conduct which the appellant was in a position to claim.”22. Employers who, without warning, act out of line with responses adopted in comparable cases of violence or fighting in the past may be held to have acted unreasonably. In Post Office v Fennell 1981 IRLR 221, the claimant was summarily dismissed for assaulting a fellow employee in the canteen. When he complained of unfair dismissal, he alleged that several employees had been treated differently in the past for similar offences. The tribunal found his dismissal unfair, partly because it felt that the Post Office had exaggerated the offence and partly because of the Post Office’s inconsistent behaviour. Both the EAT and the Court of Appeal agreed with the tribunal’s finding of inconsistency. The Court of Appeal held that there was evidence before the tribunal that the Post Office had departed from a previous course of conduct without warning and this was sufficient material to support the tribunal’s conclusion that the dismissal was unfair.23. The guiding principle is whether the distinction made by the employer to comparable cases was within the band of reasonable responses open to it — Walpole v Vauxhall Motors Ltd 1998 EWCA Civ 706, CA. Ms Faulkner also mentioned the case of Epstein to which the tribunal had regard. Conclusions24. Applying the law to the facts the tribunal’s findings are as follows: Did R Genuinely Believe C Guilty of misconduct and was the belief on reasonable grounds? 19. The Claimant does not dispute that he was guilty of misconduct. Neither has it been disputed that the respondent did not hold that genuine and reasonable belief. 20. The CCTV and the Claimant’s admissions are clear that he assaulted a colleague in the workplace and was violent. This is listed as behaviour amounting to gross misconduct under company policy which potentially justifies summary dismissal. Has R Carried out an investigation into the matter which was reasonable in all the circumstances. 21. Relevant surrounding circumstances are as follows: a At the time of his dismissal the Claimant had served at the Royal mail for around 28 years. His father before him had served for 35 years. His uncle and his brothers Daniel Sutton and Dave Sutton also worked for the Royal Mail. I find that this was not just a job for the Claimant, but a part of his identity, heritage and something he took great pride in. There are photographs in the bundle of the Claimant paying his respects to the late queen lying in state in his post office uniform. b The Claimant has also said that prior to this incident he had an unblemished record. This has not been disputed and so I accept this evidence. c For some time, the Claimant was the designated first aider for his team. In his statement the Claimant says he was also a qualified mental health first aider. This was not disputed by the Respondent and so I accept this evidence. d The background to events on 29th July are not in dispute. 15th August 22. Turing to the incident on 15th August in question, there is some dispute as to whether the Claimant grabbed Mr Y round the throat rather than the round the collar. 23. When being asked questions by Ms Faulkner the Claimant accepted that the collar goes round the neck and that he was holding where the neck meets the shoulders. I have seen the CCTV footage of the incident and conclude that what the Claimant did was grab Mr Tully around the throat. This is also apparent when looking at the still at page 192F of the bundle. 24. From the CCTV video the Claimant turns and speaks to Mr Y as he is walking in. Mr Y stops to speak to the Claimant and shortly afterwards the Claimant pushes Mr Y backwards causing the parcels to drop behind him. The Claimant then keeps hold of Mr Y’ left arm and continues talking to him while pointing his finger in Mr Y’s face. This is an aggressive action which I find was meant to intimidated Mr Y.25. Daniel Sutton then comes over and puts his hand on the Claimant’s shoulder as he is talking with Mr Y. Mr Y then looks to a colleague in the foreground of the shot ostensibly for support. Mr Sutton then grabs Mr Y round the neck with both hands pushing him back. At this point, Daniel Sutton holds the Claimant from behind by the shoulders to coax him off. The incident is over in a moment. The Claimant disengages after a few seconds. Mr Y walks away and the Claimant continues to shout after him.26. Turning to the issue of provocation. Mr Tully and Mr Robson find that the Claimant’s assault of Mr Y was unprovoked. I remind myself again that it is not my own view that matters here. It is whether Mr Tully and Mr Robson’s conclusions were within the range of reasonable responses. 27. In terms of evidence R had about 29th July. At the meeting with Gary Williams the Claimant reported inappropriate behaviour towards the female colleague, the inappropriate text that was sent and that she asked to not be left alone.
Conclusions
[28]At the formal charge interview the Claimant [118] reported that Mr Y was being a problem. That the female colleague asked Mr Y to leave her alone, asked the Claimant and others not leave her alone with Mr Y and details of the text sent by Mr Y to the female colleague.[29]The information provided by the Claimant during the disciplinary process gave the impression of Mr Y acting inappropriately while in drink during a works do. However, this information did not fully convey the predatory nature of Mr Y’ conduct that night. The Claimant for example did not mention the part about Mr Y forcing the lady to drink shots and tipping his away. His focus in the interview and meetings was on the text. This was also the focus of his conversation with Mr Y on 15th August.[30]During the Mr Williams’s interview with Daniel Sutton [102], he mentions that Mr Y spiked a male colleagues Guinness. He corroborates that Mr Y was acting inappropriately, making the lady anxious and asking her not to be left alone with him. He also says that he is aware of 7 different women having complained about Mr Y so this was not an isolated incident.[31]There is also the letter from Ross Hubbard, from July/August who was on the night out on 29th July and reports Mr Y pressuring the Lady to drink while he was tipping his own shots on the floor. He further corroborates that the female colleague asked not to be left alone.[32]The Claimant’s own reasons for assaulting Mr Y was that he wanted to speak to Mr Y about the text he had sent to make the female colleague feel uncomfortable. Mr Y said that he did not know what he was talking about. The Claimant said please do not take me for a fool at which point Mr Y laughed. That made the Claimant see red. On the evidence before me I find that the intention was not to strangle Mr Y, but it was to intimidate him to stop him laughing.[33]Based on this evidence I find that the conclusion that the Claimant’s conduct was unprovoked was within the range of reasonable responses. There was certainly background evidence as to surrounding circumstances that demonstrated that the Claimant was trying to call out and deal with extremely inappropriate, predatory behaviour by a fellow colleague towards a woman. However, notwithstanding that, the conduct the Claiamnt was challenging had taken place over 2 weeks before the event. The Claimant himself acknowledged that there were other avenues he could have taken to address this. Furthermore, it is significant what made the Claimant react in the way he did on the day was that Mr Y laughed it off. The reason the Claimant gave for putting hand on Mr Y was to stop him laughing.[34]Even on the Claimant’s version of events this showed a serious and significant lapse of judgment.[35]However, what is clear from the very outset when he is first interviewed by Mr Williams and throughout the process is that the Claimant acknowledged that his actions were wrong and showed significant remorse. The interview records show that the Claimant demonstrated considerable insight into why what he did was wrong and what he should have done differently. However, I further find that the Claiamnt has sought to downplay the event to a degree by maintaining that he grabbed Mr Y by the collar when in fact he grabbed him around the neck.[36]By the time of the appeal, around 39-character references had been submitted which, in addition to the Claimant’s unblemished employment record showed that his actions were out of character.[37]It is against this background that the reasonableness of the Respondent’s investigation needs to be viewed. Health[38]A further factor to determine is the issue of the Claimant’s ill health. During the Claimant’s interview with Gary Williams, he stated he had a lot of stress with his health situation, which may have contributed partly to his reaction. He stated he had taken advice and completed a health assessment on the app. During the formal charge interview on 5th September the Claimant says to Mr Tully that it was very out of character for him and that he was probably under stress because of his health.[39]Mr Tully in his evidence was extremely candid and accepted that, with the benefit of hindsight, he probably should have probed this more. That he did not dig into it and that was his error. This was not however something that was raised specifically in mitigation. Mr Tully said that at the end of the interview the Claimant was asked if he wanted to add anything. The Claimant did not raise his health at that point. It was not raised as a ground of appeal.[40]The Claimant was also very candid in his evidence and said that he did not realise at the time that his health was of as great a significance as he now thinks it is. With hindsight he now realises that it probably played a significant factor.[41]I have to look to the information available to the Respondent at the time the decisions were taken having looked at the interview records and the context in which health was raised I do not consider that it was outside the range of reasonable responses for this not to have been investigated further. The information provided to the Respondent was only that he was stressed because of his health. The Claimant himself provided no further information about his condition or mention suspected diabetes.[42]When the Claimant mentioned his health to Gary Williams it was in a long response with other information. When mentioned to Mr Tully is was during questioning to establish what happened during the assault.[43]The Claimant describes being shut down when he mentioned his health. That does not come across from the interview records, which show Mr Williams and Mr Tully questioning about one thing at a time.[44]As was clear from the Claimant’s own evidence, he only realised the potential significance of his health sometime after the disciplinary and appeal process concluded. I bear in mind that the Claimant is an experienced first aider. If the Claimant himself did not realise the significance of his health then it is difficult to see how Mr Tully or Mr Rostron should have done so. Indeed, the Claimant did not raise his health as a ground of appeal despite having union representation at all stages of the process.[45]On the evidence before me, I accept Mr Tully and Rostron’s evidence that this was not a factor which appeared to be key to the investigation at the time. It would have been a counsel of perfection to expect the Respondent to tease out and make the Claimant’s case for him, notwithstanding that his conduct appeared out of character.[46]The other difficulty with the Claimant’s argument on this point is that there is no evidence, even now, to support that the Claimant’s health issues played a material part in his reaction on 15th August. There is no medical evidence that such behaviour is associated with diabetes of high/low blood sugar levels.[47]The Claimant in his evidence talked about his sugar spiking after he had something to eat and that this may have something to do with it. However, on his evidence he had not eaten for 6 hours. I accept that the Claimant may have been stresses at feeling unwell and having to take tests, but this does not explain his reaction to Mr Y in the post room.[48]As such, even if I had found a failure to investigate on this point was unfair I would have found that the Claimant would have been dismissed in any event and thus mad a Polkey reduction of 100%.[49]For these reasons I do not find that the Respondent acted unfairly in relation to addressing the issues as to Claimant’s health and even if I had would have found that any further investigation into this would have still resulted in the Claimant being dismissed. Consistency[50]The Claimant relies on National Procurement agreement which states that one of the aims is to provide an approach that is fair, consistent and will deal with employees in a non-discriminatory and timely way. The Claimant says that this procedurally obliges the Respondent to take positive steps to ensure that decisions taken are consistent with previous decisions.[51]It was argued on behalf of the Claimant that the managers relying on their previous experience did not satisfy this policy.[52]I do not accept the Claimant’s interpretation of this policy. I find that the correct interpretation of this policy is that the approach needs to be consistent and what this is referring to is the procedure and considerations adopted. It does not place a positive obligation on the Respondent to keep a database of past decisions and to consult these.[53]Guidance is given in the Policy to ensure consistency; by way of setting out what behaviour amounts to gross misconduct that could justify dismissal. Guidance is also given on various penalties that can be adopted as set out at page 47H of the bundle.[54]I find that the Respondent’s approach to previous decision does not make the investigation process unreasonable in all the circumstances. The issue of previous inconsistent treatment is more appropriately considered under the question of whether the decision to dismiss was reasonable in all the circumstances and so the comparator cases will be addressed below. Use of Wrong Name in Appeal letter[55]I turn next to the use of the wrong name in the letter informing the Claimant of the outcome of the appeal. Again, this was raised on behalf of the Claimant as evidence that Mr Rostron did not give proper consideration to the Claimant’s individual circumstances.[56]Mr Rostron’s evidence was that this was a genuine administrative error relating only to using the wrong name. In support of this he cites that all the details in his decision letter were otherwise correct.[57]Use of the wrong name in the letter was extremely unfortunate and it is completely understandable that this would make the Claimant feel that proper consideration had been given to his case. I do not however find that this indicated that Mr Rostron confused the Claimant’s case with that of another. I accept his evidence that this was a genuine administrative error when typing out the letter and so does not make the investigation unfair. Rehearing[58]The Claimant says that Mr Rostron considered the appeal to be a review of the decision to dismiss when under the relevant policy it should have been a rehearing. There is reference in Mr Rostron’s witness statement and conduct of appeal decision document to range of reasonable responses. It is however clear that he carried out his own investigation and was aware this was a rehearing. He states this at the beginning of the appeal interview. This is also clear from the matters considered such as from email exchanges at pages 167 – 175 where Mr Rostron asks the Claimant to make additional comments as to why the matter was such a contentious issue for him given the delay between the incident on 29th July and assault on 15th August as well as the speed at which the assault took place on the day.[59]I note that this was not a point laboured on behalf of the Claimant in closing submissions.[60]It is also pertinent to note that while this was a rehearing, it was entirely appropriate for Mr Rostom to be guided by the Claiamnt’s grounds of appeal when focussing his investigation. The grounds were: a Disproportionate penalty. b All mitigating circumstances including antagonism/provocation faced when challenging a very serios matter for sexual harassment not considered. c 28 years of unblemished record.[61]For these reasons I conclude that the Respondent did carry out an investigation that was reasonable in all the circumstances. Is the decision to dismiss in the band of reasonable responses?[62]Again, I need to remind myself that the test here is not whether I would have reached a different decision on the evidence before me, but whether dismissing the Claimant under the circumstances was outside the range of responses open to a reasonable employer.[63]This is also the test when considering examples of other decisions reached by the Respondent and whether the decision in the Claimant’s case is inconsistent. I need to consider whether the distinction made by the employer was within the band of reasonable responses open to it.[64]In this case the distinguishing feature was that when having 2 weeks to make a complaint about Mr Y the Claimant instead sought to remonstrate with him on his return to work and grabbed him round the throat. The Respondent submits that it was the unprovoked nature of the attack that justified the summary dismissal.[65]The Respondent’s rationale for dismissing in this case as opposed to others does not take the approach outside the range of reasonable responses.[66]I look more broadly at the Claimant’s long unblemished service, the significant number of letters submitted in support. I take into account that these were written by many colleagues who have known the Claimant for over 20 years, two letters from serving police officers, a letter from his first aid mentor. Personal references from people who have known him upwards of 15 years in his capacity at volunteering and supporting grass roots football as well as in his darts club. All support that the Claimants behaviour was extremely out of character.[67]I take into account the Claimant’s remorse and insight he showed into what he did. That he himself realised what he should have done differently and clearly set this out in the procedure[68]I further take into account that Mr Y himself was at pains to say that the Claimant should not be dismissed. As well as the background and surrounding circumstances to the incident.[69]If this matter had been decided by a different person, they may well have chosen not to dismiss the Claimant. On the evidence before me, as a result of this decision the Respondent has lost a good and loyal employee, who committed a momentary lapse of judgment albeit that this lapse was serious and unprovoked.[70]However, that is not the test I have to apply. The test I have to apply is whether dismissal rather than imposing a lower sanction was in the band of reasonable responses open to the employer. Taking into account the CCTV footage, the time lapse between the 29th July and 15th August, and how quickly the situation escalated to violence I conclude that the decision was within the range of reasonable responses.[71]For these reasons I find that the Claimant was not unfairly dismissed.