Mr I Perkins v East of England Ambulance Service NHS Trust: 3200971/2023 and 3201117/2023

EMPLOYMENT TRIBUNALS

Case No 3200971/2023, 3201117/2023

Between

Mr I PerkinsClaimant

East of England Ambulance Service NHS TrustRespondent

Before

Employment Judge Gardiner

Mr J Heard (instructed by counsel) for respondent

Date 29 October 2025

JUDGMENT

The judgment of the Tribunal is that:- The complaints of race and sex discrimination and unfair dismissal are not struck out under Rule 37 of the Employment Tribunal Rules 2013 as having no reasonable prospects of success due to the operation of statutory time limits. JUDGMENT

[1]The complaint of unfair dismissal was brought outside of the statutory time limits. It was reasonably practicable for it to have been brought in time. The Tribunal has no jurisdiction to hear it.

[2]The complaint of unfair dismissal is dismissed.

[3]The Tribunal extends time on a just and equitable basis. We have jurisdiction to hear the complaints of direct race and sex discrimination

[4]The complaints of race and sex discrimination are not well-founded and are dismissed. Approved by: JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

REASONS

[1]By an ET1 claim form dated 16 May 2023, the Claimant brought complaints of race and sex discrimination. A complaint of unfair dismissal was added by the second claim issued on 22 June 2023. The list of issues in this case was agreed and set by EJ Gardiner at a preliminary hearing on 21 November 2023. We will discuss the issues in detail in the judgment section of these reasons.

[2]At that preliminary hearing EJ Gardiner declined to strike out the Claimant’s complaints on the basis that they had no reasonable prospects of success, given the operation of the relevant statutory time limits. No strike out order was made, and the issue of time limits was left for this Tribunal to determine.

Evidence

[3]We heard sworn evidence from the Claimant and for the Respondent, we heard from Mohammad Umar – one of the Respondent’s Employee Relations Case Investigators who acted as the Investigation Officer, Simon King – Head of Clinical Operations who acted as the Respondent’s Disciplinary Hearing Chair, Karen Carter - head of the Respondent’s Employee Relations department, and Stephen Bromhall - the Respondent’s Chief Information Officer, who chaired the Appeal against dismissal. We had sworn witness statements from all witnesses and from Mark Sherman, former ambulance driver, who did not attend the hearing. The Tribunal also had a bundle of documents which comprised 911 pages. We also had an agreed chronology.

[4]From the sworn evidence and the documents produced to the Tribunal at the hearing, the Tribunal make the following findings of fact. The Tribunal did not make a finding about every detail in the case but only on those disputed matters that were relevant to the issues.

Findings of Fact

[5]The Claimant confirmed that he had been a serving police officer on the island of Montserrat before leaving in 1998. He travelling to the UK in 2001. While in Montserrat he had also completed one year of a law degree. The Claimant began his employment with the Respondent on 13 June 2017. At the time of his dismissal, he was employed by the Respondent as a Senior Emergency Medical Technician. The role of Senior EMT involves the Claimant being responsible for the assessment, care, treatment, referral and transport of patients and their carers/relatives in emergency and nonemergency situations. It was the Respondent’s unchallenged evidence that Senior EMTs would routinely be expected to work without the presence of a senior clinician in accordance with the Respondent’s policies and procedures and at the required level of competence. The Claimant confirmed that he was aware that he was in a position of trust and that he worked with vulnerable people. The Claimant only worked night shifts.

[6]We find that the Claimant was summarily dismissed from his job as a Senior EMT on 1 February 2023. On 9 May 2023, he was informed that his appeal against dismissal had been unsuccessful.

[7]The Claimant entered into early conciliation through ACAS from 10 to 16 May. He brought complaints of race and sex discrimination on 31 May 2023. The complaint of unfair dismissal was brought on 22 June 2023 after a period of conciliation from 11 May to 22 June.

[8]On 25 August 2022, the Claimant and another Senior EMT, Benjamin Novell, were on duty and responded to a call. It is likely that when they arrived at the property, they found a service user (the SU) at the property with some rope around her neck. They released her and took her into the ambulance. It is likely that Mr Novell drove the ambulance from the pickup point to Broomfield Hospital, while the Claimant was in the back of the ambulance with the SU. During that drive and while the ambulance was in a queue at the hospital waiting to take her in, the SU and the Claimant were engaged in conversation in the back of the ambulance. It is likely that during the investigation and the disciplinary process the Claimant gave different versions of what was said between him and SU in the ambulance.

[9]The Claimant chatted with the SU for a few minutes in the back of the ambulance, while Mr Novell went out of the ambulance to discuss her admission, with the hospital handover crew and to use the toilet. It is likely that during that time, the Claimant told SU that he was a qualified fitness trainer and that he beat his depression through exercise and reading. He encouraged her to read and join a gym. She asked him whether he could create a training and diet plan for her.

[10]In her statement, the SU said that the Claimant physically put his number into her phone. The Claimant stated that he indicated to her that she could ‘hit him up’ on social media where he is known as ‘Kai Perfect’. She would not have known to look for Kai unless he gave her this information. His evidence was that he did not give her his telephone number but while in the ambulance she looked it up and told him the telephone contact number that she found there, at which point he confirmed that it was his number. In his statement to the Tribunal the Claimant stated that he reluctantly gave the SU his number when she asked for it. He told her to only use the number if she felt that no one was listening to her and as an alternative to selfharming. From all that evidence the Tribunal finds it likely that during their conversation in the ambulance, the Claimant either gave her his number directly or referred her to his social media posts, which contained his number.

[11]The following day the SU messaged the Claimant to thank him and to apologise for being an annoying patient. She did not say that it was an emergency. The Claimant responded to tell her that she should text him if she was finding it hard to sleep.

[12]We find it likely that the SU created a WhatsApp group between her and the Claimant and began sending him messages on WhatsApp as well as sending him SMS text messages. We find that this is likely to have happened on the evening of 26 August as the next SMS message we saw was one in which the SU declined an invitation of ‘company’ from the Claimant. It was not clear what he said in his invitation to her was as we were not given a copy of his message.

[13]We looked at phone records that showed most of the communication between the Claimant and the SU and find that between 26 August and the morning of 27 August, there were messages between them in which the Claimant addressed the SU as ‘Hey gorgeous lady’ and ‘Good morning sleeping beauty’. The Claimant ended those messages with a series of X’s, which can be described as kisses. He also referred to her in a message as ‘hun’. There were also some missed calls from the service user to the Claimant. There was no record that the Claimant ever telephoned the SU.

[14]In a message on 27 August, the SU told the Claimant that she was doing her washing and trying to ignore thoughts of taking an overdose. The Claimant did not escalate this or report it to a manager or to the ambulance service or the police. Instead, he responded by asking the SU for her address so that he could ‘drop something off for her’. The SU did not provide the Claimant with details of her address.

[15]On the same morning, 27 August, the SU messaged the Claimant to say that she was considering 4 options – Option 1 was to take an overdose and drive herself to A&E, Option 2 was to go and buy more rope and ‘do it right this time’, and Option 3 was to drive to a bridge over the A 12. She did not write details of what she considered was her Option 4. In response Claimant messaged her and stated that Option 4 was the better option and that she should do nothing, get in her car and ‘come to meet me’. He did not refer her message to the police or to the ambulance service and did not advise her to take herself to the hospital.

[16]We find it likely that around the same time SU telephoned the Claimant. She also sent him a WhatsApp message that she was going to ‘her’ bridge (Tribunal’s emphasis). She provided him with the location details. The Claimant drove to meet her at the bridge. We find it likely that he got out of his car and at some point, he physically pulled her back from climbing on to the bridge. He told her that he was going to call an ambulance, but the SU asked him not to do so because she did not want to lose her job. The Claimant told us that during this incident, he assessed her capacity and decided to drive her to a service station. He told her not to leave the car while he went into the shop at the service station. She agreed. He went into the shop and bought them both drinks and as he was leaving, he saw a bouquet of flowers that had been discounted and bought one for her. He told us that his mother had always said that flowers cheer people up. He got back in his car with the SU and gave her the flowers. He drove them to a park, and they sat on a park bench together. The Claimant then drove them back to the car park so that the SU could pick up her car where it is likely that she hugged him and tried to give him a kiss on the cheek. On her return home she texted the Claimant to thank him for what she described as a ‘lovely afternoon’ and for the flowers. In response, the Claimant referred to the SU as ‘hun’ and told her that she was beautiful and thanked her for coming with him.

[17]On 27 August there were a number of messages between the Claimant and the SU. Among those messages was one from the Claimant in which he checked that she was getting on with life by asking her whether she had been to Asda and by asking her what time she got up on weekends. He also referred to her as bbz, which he agreed in evidence was shorthand for ‘babes’.

[18]We find it likely that the SU presented herself to the hospital on the evening of 27 August. She texted the Claimant and told him that she had been feeling depressed during the night and had self-presented to the hospital. The Claimant advised her by text message at around 7.15am the following day that if she left the hospital without being discharged, the staff would get the police involved, which could cause trouble for her with her employment.

[19]It is likely that sometime after this, the Claimant blocked the SU on his phone and deleted the WhatsApp and other messages between them. In preparation for this hearing, he was able to retrieve the SMS text messages that have been produced in this bundle from the ‘cloud’ where they had been saved. Unless saved, WhatsApp automatically deletes messages after a period, which meant that those could not be retrieved.

[20]The Claimant did not report his interactions with the SU to his managers or to anyone. The Respondent found out about this when the SU was attended by another ambulance crew, sometime later, in October.

[21]On 23 October 2022, a different ambulance crew, who were Hannah Guinea and another, attended a suicidal patient. It was the same SU who had previously interacted with the Claimant. During her conversations with Ms Guinea, she said that a male member of staff had attended her in August and that he had taken her out on a date. Ms Guinea and her colleague took the SU to a hospital. They then went to Chelmsford Ambulance station to complete paperwork, and it was there that Ms Guinea spoke to the duty manager for Chelmsford and briefed him about the comment the SU made about the conduct of a male member of staff. She also submitted a Datix. A Datix is a widely used incident reporting and risk management software system, within the NHS, which allows healthcare staff to formally report various incidents, such as patient safety events, staff injuries, property damage, or near misses, to capture information, learn from mistakes, and prevent future harm. It is usually treated as an urgent matter.

[22]At the time it was not known who the crew member was that the SU was referring to. Ms Guinea checked the paperwork for that day and identified the Claimant as the likely crew member although she could not remember the Claimant’s name when she wrote her statement.

[23]It is likely that the Claimant’s local management were told about the SU’s disclosure to Ms Guinea. On 2 November, Mr Novell was asked to make a written statement about that shift he worked with the Claimant on 25 August 2022, which he did.

[24]On 5 November, when he attended work for his shift the Claimant’s managers asked him to write a statement about his interactions with the SU. The Claimant was shocked that he was being accused of taking a SU out on a date. He was told that he had to sit in a room and make a written statement about this and to do so before he started his shift. We find it extremely unlikely that the room was locked, as the Claimant alleges, but it is likely that the managers expressed a sense of urgency when they spoke to him about this and closed the door with him in a room, which caused him to panic. We find that it was reasonable for them to ask him to provide the statement there and then. This was because this was considered urgent. The disclosure had been made by a very vulnerable person, it was a confidential matter, time had elapsed since the disclosure had been made and more so since it happened; and this was being done in response to a Datix.

[25]In the statement the Claimant gave on 5 November, he omitted details such as buying the Claimant flowers or that she tried to kiss him when he drove her back to her car. He also did not say that he had confirmed his number in the ambulance, when she found him on social media. It is likely that the Claimant was stressed when he was asked to make this statement.

[26]A few days later the Claimant had a meeting with Mike Bates, the Respondent’s acting General Manager in which he was asked about his interactions with the SU.

[27]Lisa Fautley, the Respondent’s General Manager took charge of the investigation into the allegations against the Claimant. It is likely that she instructed Christopher Allen and Angie Simmons to attend the SU’s home to obtain a complete statement from her detailing her version of her interactions with the Claimant. In her statement the SU told the Respondent that the Claimant had given her his number, taken her for a drive after she tried to jump off a bridge, held hands with her in a public park, sat on a bench with her where they kissed and taken her back to her car, where they kissed again. She confirmed that the kissing was consensual and said that he sent her a photo of him in a bed. She also said that she sent him a photo with a ligature around her neck and asked if he could help her.

[28]On 18 November, in a meeting with Ms Fautley, the Claimant was informed of his suspension. This was also recorded in a letter dated the same day. The Claimant was told that he was suspended with immediate effect because of his interactions with a vulnerable patient. He was informed that the Respondent would now conduct an investigation into the 6 allegations set out in the letter. The allegations were formulated by Ms Fautley. The Claimant was advised that this investigation and suspension did not imply guilt. The Claimant was told that he could not go on annual leave during his suspension and that due to the seriousness of the allegations against him, the investigation could lead to disciplinary action which could lead to his dismissal.

[29]On 25 November Ms Fautley appointed Mohammad Umar to conduct a disciplinary investigation into the allegations against the Claimant. Mr Umar was an Employee Relations Case Investigator for the Respondent, and he occupied this position from 9 May 2022 and 12 July 2024. In that role he conducted disciplinary, dignity at work and other investigations. He was to conduct this disciplinary investigation under the Respondent’s Disciplinary Policy.

[30]In the Respondent’s Disciplinary Policy, an Investigating Officer’s role was to investigate alleged misconduct in a fair and objective way to establish the facts of the matter and to reach a conclusion on what did or did not happen, or what was likely to have happened or not happened, on the balance of probability. The Investigating Officer should do this by looking for facts and evidence that support the allegation and for evidence that contradicts the allegation. The policy stated that it was not the Investigating Officer’s role to prove the guilt of any party but to investigate, make findings of fact, and make a recommendation based on those findings for the commissioning manager on whether there is a case to answer. The Investigating Officer must be impartial, not linked to the case and with no vested interest in it.

[31]We find that Mr Umar did not know the Claimant prior to being appointed to carry out this investigation. Cases are usually added to a team spreadsheet when allocated for investigation and assigned to the next investigator in line. This was how Mr Umar came to be assigned to this case.

[32]The Respondent’s Disciplinary Policy stated that following an allegation of misconduct there should be an initial fact-finding investigation by a manager, which should usually be concluded within 7 calendar days from the date on which the Respondent first became aware of the incident. We find that the Respondent first became aware of the SU’s disclosure on 23 October. On 5 November, the Respondent asked the Claimant to prepare a statement. He spoke with his line manager after giving the statement.

[33]On 30 November 2022, after having tried unsuccessfully to call the Claimant on the phone, Mr Umar wrote to the Claimant to introduce himself as the Investigating Officer. In the letter Mr Umar invited the Claimant to an investigatory interview, on 5 December. The Respondent agreed to change that date due to the Claimant’s suffering a family bereavement.

[34]The investigatory interview happened on 12 December. When he attended that interview, Mr Umar had the written statement which had been taken from the service user by Mr Allen, and the statements provided by Benjamin Novell and Hannah Guinea. He had answers to further queries he submitted to Mr Novell by email. Mr Umar also had sight of the Claimant’s phone log and copies of the text messages between the Claimant and the service user, (both of which had been provided by the Claimant); copies of the patient record forms completed when the ambulance staff attended to the SU, and a screenshot of the Claimant’s social media post. He had also been given character references for the Claimant.

[35]Mr Umar confirmed that he had not been referred to the email that the Claimant sent to Mr Abell and Mr Whitehead on 14 September 2022. It was not a document he saw while conducting the investigation. In that email the Claimant made unrelated allegations of discrimination on the grounds of race in relation to opportunities available to him and others of ethnic minority background to becoming a paramedic with the Respondent. On 26 September 2022, Mr Whitehead replied to the Claimant’s letter by email. In it, the Respondent promised to have Ms Fautley and Mr N Atwal, as the Equality, Diversity and Inclusion Manager, review the points made in the Claimant’s email and to identify any issues or concerns that may exist to see whether there was anything that required further investigation. Ms Fautley declined to do this. Hein Scheffer was substituted in her place, and they reported to the Respondent on the matter on 3 February 2023.

[36]The Claimant was accompanied to the investigation interview with Mr Umar by his Trade Union representative, Donna Thomas. A copy of the notes was sent to him on the same day, and he was asked to confirm that it was a true record of what had been said in the meeting. The Claimant did not respond to that email. Mr Umar also asked the Claimant if he could identify on the call log which calls were incoming, and which were outgoing by clarifying what the icons on the log meant. The Claimant refused to do so. After some back and forth of emails between them, Mr Umar did some research which enabled him to identify what the icons meant.

[37]At the end of his investigation, Mr Umar provided a written report, which he sent to Lisa Fautley, in her capacity as case commissioner. He also had a meeting with her on 20 December, to discuss the report. On 10 January, Mr Umar sent the final version of the report to Ms Fautley and to Joanna Maunder, who was going to provide HR support to the disciplinary panel. In the report, Mr Umar concluded that the allegations were supported by the evidence he considered. It is likely that as the commissioning manager, it was Ms Fautley who made the decision that this matter should proceed to the next step, which was a disciplinary hearing. The Claimant was advised that the matter would be proceeding to a disciplinary hearing.

[38]On 10 January, Simon King, the disciplinary hearing chair wrote to the Claimant to invite him to a disciplinary hearing to face the following allegations: ‘1 Following you attending a vulnerable patient on 25 August 2022, you provided your contact details to them and subsequently contacted and met them on a number of occasion(s). 2 In line with your safeguarding responsibilities, you have behaved towards a young person or adult in a manner that may indicate you are unsuitable to work in a position of trust. 3 Your actions outlined above had the potential to cause harm to a vulnerable patient and may have breached the Trust’s Safeguarding Adult’s Policy. 4 You have not acted in accordance with the Trust Core Values – Care, Teamwork, Quality, Respect and Honesty. 5 Your actions have/or have the potential to bring the Trust into disrepute. 6 Your actions have caused a fundamental breach of the implied term mutual trust and confidence.’

[39]We were taken to the Respondent’s Safeguarding Policy. At section 3.1 it stated that all staff, volunteers and commissioned services have a specific responsibility to share concerns that they become aware of. Section 3.7 stated that ‘All staff … must share the Trust’s commitment to protect, safeguard and promote the welfare of adults considered to be at risk.’ At section 4.0, on page 169, it stated that ‘All staff, regardless of their position within the Trust must not have … behaved in a way that indicates that they may not be suitable to work with children/adults. Also, staff must not have acted in a way that causes concerns to be raised regarding their conduct in their personal life which may also be considered relevant to safeguarding. At page 176, it stated that all staff in the Trust have a legal responsibility to share any concerns they may have, or they may become aware of when acting on behalf of the Trust. Also that everyone has a responsibility to listen to the person telling you about the abuse/neglect and to ensure the person at risk is safe, to ensure your own safety and another other children or adults at risk are considered in the risk assessment.

[40]The Respondent’s disciplinary policy set out that trade union representatives had a wide-ranging role in the process, which included giving advice to an employee, representing them and accompanying them to disciplinary investigation meetings, hearings and appeal hearings. The policy also reminded employees of their statutory right to be accompanied. The person accompanying an employee could not answer questions on their behalf, but they could present their case and fully explain an employee’s response to any allegation made against them.

[41]The policy set out that the role of the employee relations representative was to provide advice and guidance at all stages of the application of the disciplinary policy.

[42]A cultural ambassador participated in this process. Their role was defined in the policy as being a person who could provide independent advice and guidance to investigating teams and disciplinary panels when they are investigating or considering allegations for or against members of staff from ethnic minority backgrounds and staff with disabilities. The cultural ambassador should identify any issues of conscious or unconscious bias or discrimination that they observe in the process being applied, in any particular case. They would bring those issues to the attention of the other members of the team and ensure that they are taken into consideration in the decision-making process. The cultural ambassador does not take part in deciding the outcome of the disciplinary hearing. The Respondent had a standard operating procedure (SOP) which set up the cultural ambassador programme, but this was not shown to us. We therefore did not know what training and support was given to cultural ambassadors to enable them to challenge senior managers who might be conducting a disciplinary process and what protections were put in place for them when doing this work.

[43]Timescales were set out in the disciplinary policy, but at the same time it also stated that those may be varied to assist with either the employee’s wellbeing issues, where appropriate, or the Respondent’s need to conduct further fact finding or other enquiries.

[44]Where formal disciplinary action was taken against an employee, the policy stated that before deciding on the appropriate sanction, the panel would take into account the employee’s current disciplinary and general record, actions taken in previous similar cases, the explanations, mitigation or extenuating circumstances provided by the employee or the complainant; and whether the intended action is reasonable under the circumstances.

[45]Possible disciplinary sanctions under the Respondent’s policy ranged from a first written warning to dismissal, with or without notice. There was also a right of appeal. When an employee submitted an appeal, they needed to state the grounds of their appeal and whether they were appealing against the decision that they had committed misconduct/gross misconduct, the level of sanction imposed or any procedural issues. There were dates set out for the processing and consideration of the employee’s appeal.

[46]With the invitation to the disciplinary hearing the Respondent sent the Claimant copies of the disciplinary policy, the investigation report written by Mr Umar, text messages, call logs, screenshots, character references supplied by the Claimant, statements from Benjamin Novell and Hannah Guinea, the Claimant’s statement, the suspension letter and the Respondent’s timeline of events.

[47]The Respondent checked with the Claimant as to whether he had any additional statements or witnesses that he wanted to bring to the disciplinary hearing. The Claimant supplied a statement of case, and his Trade Union representative requested the presence of a cultural ambassador in the hearing.

[48]The disciplinary hearing happened on 25 January. The disciplinary panel was chaired by Simon King, and he was joined by Ms Gita Prasad, the Respondent’s Deputy Director of Business and Partnerships, Caroline Sexby, Safeguarding Lead and Michael Lewis, as cultural ambassador. The panel was advised by Joanna Maunder, the Employee Relations Case Manager. The Claimant also attended with his trade union representative, Donna Thomas. As she had commissioned the investigation report, Ms Fautley, General Manager, attended to present the Respondent’s case.

[49]Mr King was one of three full-time hearing chairs appointed by the Respondent to conduct grievance and disciplinary hearings to manage a caseload of such hearings. Mr King was seconded from July 2022 to this role on a full-time basis for a year. He had no knowledge of the Claimant before he chaired the disciplinary hearing.

[50]We find it likely that at the start of the hearing, Ms Fautley told the panel that they should either disregard or not give much weight to the character references provided for the Claimant. We find it likely that this was said, even though it is not in the minutes, because the minutes record Ms Thomas’ response which was that they should consider the character references.

[51]The Respondent’s Grounds of Resistance referred to section 3.1.17 of the Investigation Report where it stated that ‘The character references cannot be used as evidence, it may well be that IP has helped people in the past to overcome issues in their live, however this case needs to be investigated independently based on the evidence collected, without any influence of personal views’. The Respondent recorded that Ms Fautley read this out in the disciplinary hearing. This again confirmed that there was a discussion about this in the disciplinary hearing. It was not recorded in the minutes that there was a discussion about whether the panel should read the references or that Ms Fautley had indicated that she did not support the panel taking those references into account.

[52]A large part of the Claimant’s statement of case was his explanation of his background from growing up in the Caribbean and the values that were instilled in him from that upbringing, which gave him a strong motivation to help people.

[53]We find that the Claimant came across from his statement of case as a good listener and a helpful and empathic person. In the disciplinary hearing he accepted that he had given the service user his phone number and that he was now aware that he should not have done so. He also stated that on reflection, he should have made his managers aware of what had happened and been honest and upfront with them at the time about it and made sure that the patient was ‘safety netted’. In the Tribunal hearing the Claimant appeared to walk back from these statements and stated that he only said those things because his trade union representative had advised him that it was best to do so. That was of some concern to the Respondent and to the Tribunal.

[54]The Claimant and his representative, Ms Thomas had ample opportunity to put his case to the panel. The panel adjourned the hearing on more than one occasion. One of those breaks happened because the Claimant broke down while speaking. They decided to reconvene later to give the judgment.

[55]In the hearing Ms Fautley confirmed that she had not had any reports of any kind of conduct issue or any complaints from patients about the Claimant. She recalled being told that there had been difficulties regarding him progressing into being a paramedic, but nothing else.

[56]We find it likely that either during a break in the meeting, or at some point during the meeting, but not recorded in the minutes; we find that Ms Thomas raised with Mr King that she had been told that there were other ambulance staff who had committed similar offences while employed by the Respondent but not faced dismissal. She did not give him any more details. We find that once they concluded that it was gross misconduct and when considering sanctions, the panel spoke to HR and asked whether there had been any similar cases. Ms Maunder advised the panel that as far as she knew, the cases were not sufficiently similar to warrant further consideration but that she would confirm if that was not the case. The trade union representative did not refer to specifics of cases or provide names of the ambulance staff she believed had behaved in a similar way to the Claimant. The panel was not provided with the specifics of the cases that we were informed of during the hearing. Ms Thomas later stated at the appeal that she had given Mr King a name at this hearing, but this was not recorded in the minutes and Mr King did not recall it. We did not hear from Ms Thomas.

[57]On the following day, 26 January 2023, the Claimant was informed that they would reconvene on 1 February so that he could be given the decision.

[58]On 1 February, the panel reconvened with the Claimant and Ms Thomas in attendance. The Claimant was informed that the panel’s decision was that he had committed gross misconduct and was to be summarily dismissed. The Claimant was extremely upset and distressed by this. It is likely that he was in shock when he was told that he had been dismissed. He had not expected that he would be dismissed for what he considered was helping someone and it is likely that he thought he would get a ‘slap on the wrist’. Before leaving the building, the Claimant and Ms Thomas discussed what he would do next as he was unhappy with the decision. They agreed that he should appeal. Before the end of the day Ms Thomas emailed Ms Maunder to lodge the appeal.

[59]After the disciplinary hearing, because of how distressed he was at the news that he was to be dismissed, Ms Maunder emailed the Claimant with the Kays Crisis Line information. This was a confidential helpline which the Claimant could call for support.

[60]The Claimant confirmed that he was aware of the right to bring a complaint to the employment tribunal but had not been aware of the relevant time limits. After dismissal, there was a period of four and half weeks when he could not get hold of Donna Thomas.

[61]The Respondent wrote to the Claimant on 2 February to confirm the outcome of the disciplinary hearing. The panel partially upheld allegation 1 as although there was no evidence of him meeting the SU on a number of occasions, the Claimant had met up with her on one occasion, given her his phone number and contacted her. Allegation 2 was upheld on the basis that although his stated intentions were to support the SU, he had engaged in conversations which were inappropriate, had spent time alone with her, which was not safe behaviour in light of her being a vulnerable patient. When they were in communication, the Claimant had not alerted the emergency services or mental health teams so that they could provide an effective response to her crisis or so she could have appropriate care and support. Allegation 3 was upheld because the Claimant’s actions were in breach of the Trust’s Safeguarding Adults Policy, specifically, sections 3.1 and 4.0. The panel concluded that by failing in his responsibilities, his actions had the potential to cause harm to a vulnerable adult patient. Allegation 5 was upheld because there was potential for significant disrepute to be caused to the Respondent due to the Claimant’s inappropriate and unsafe conduct towards the vulnerable SU. Allegation 6 was also upheld as the panel concluded that the trust and confidence necessary for the Claimant’s employment to continue had been severely breached by his actions towards a vulnerable patient and by his dishonest responses during the investigation. The panel considered that when he met the SU, the Claimant had been in a position of trust as a senior EMT. He made many breaches of the Trust’s policies and procedures, missed several opportunities to alert the appropriate services, make referrals, and/or take action to disclose his conduct and the sequence of events to his line managers.

[62]The Respondent considered what the Claimant spoke about in relation to his upbringing in Montserrat but considered that he had been living in the UK for the past 20 years and working with the Trust for 5 years, which does not appear to have given him an understanding of what is appropriate in UK community culture. The Claimant had been given the appropriate training in Safeguarding and the relevant mandatory training but that had not impacted his conduct in relation to this vulnerable adult. The disciplinary panel acknowledged that some aspects of the SU’s version of events may not be entirely accurate, which was understandable given her mental health at the time, and it is likely that they relied on the Claimant’s version when deciding what happened between them. The panel also acknowledged that even though the SU was seeking the Claimant’s help, she had also asked him not to alert the mental health care system, which could have created pressure on him to abide by her wishes. But he failed to adequately consider that she was vulnerable, and her request had to be considered within that vulnerability.

[63]The disciplinary panel weighed up and considered the following in mitigation: - the Claimant’s 5 years of service with the Respondent, the reflection and apology statement he made during the disciplinary hearing, his assurance that he would not do this again, his description of himself as someone who likes to help people and his desire to remain working for the Trust. The panel considered action short of dismissal and whether they could keep the Claimant in employment and organise supervision or an alternative role for him. However, since his inappropriate contact with the SU happened while he was working as part of a two-man crew and being aware that there would be times when crew members are unsupervised; the panel decided that it would be unsafe to return the Claimant to a patient contact role. The panel also considered whether the Claimant could be placed in a non-patient facing role but decided that this would not be appropriate due to the loss of trust and confidence arising from the Claimant’s failure to be truthful in his initial statement and his failure to disclose his actions when he responded to the vulnerable SU. The panel concluded that the Claimant had committed gross misconduct, and that it would be unsafe for him to remain employed in any role. The panel determined that the appropriate sanction was summary dismissal.

[64]The Claimant was informed in the letter that he had 7 days to lodge an appeal against dismissal. That was 7 days from the receipt of the letter dated 2 February. The Claimant had already submitted his appeal on 1 February. The ground of appeal was that he considered that the sanction of dismissal was too harsh.

[65]It took some time to arrange the date of the appeal hearing. It was initially arranged for 9 March. It is the Claimant’s case that he had trouble contacting his trade union rep, Donna, for over 4 weeks, following the disciplinary hearing. He believed that this happened because she had been told off by a panel member at the disciplinary hearing. We had no evidence from Donna Thomas about this. Also, that allegation was not about the chair of the panel, and it was not a matter that had been brought to his attention on the day. In addition, in her emails to Ms Maunder in February, Ms Thomas made no reference to anything untoward having happened at the disciplinary hearing. Instead, she referred to having been on holiday and being busy with other hearings as the reasons for delay. We had copies of text messages between the Claimant and Ms Thomas in which he was chasing a date for the appeal, and she made no reference in those messages to anything untoward having happened at the disciplinary hearing.

[66]The Claimant prepared his written statement of case for the appeal. He also produced additional written character references for it.

[67]Mr King provided a written management response to the Claimant’s appeal. He pointed out that when the SU reached out to the Claimant on 27 August it was on his rest day, but he did not alert the emergency mental health services or make a referral, nor did he notify his line manager at any stage until the concern was raised with him much later, by his manager. Also, that the Claimant had not initially told the truth about giving the SU his phone number when he was asked about it. He also confirmed that the panel had considered the Claimant’s cultural background and had not doubted the Claimant’s evidence, which was supported by his various character references, that he was a caring and supportive individual to others who have varying degrees of need and vulnerability. He refuted any suggestion that the decision to dismiss had been taken because the Claimant was a black man and confirmed that the panel had not had any evidence of comparators and had not taken any other cases into consideration when it made the decision on the Claimant’s case.

[68]Just before the appeal hearing, the Claimant spoke to a friend, in the gym who was also a solicitor practicing criminal law, who advised him to follow the advice from the trade union representative. The Claimant was talking to all his friends about his situation.

[69]It took a while for the Respondent to appoint someone to chair the appeal. There were others appointed before Mr Bromhall, but for various reasons, they could not do it. The appeal hearing was on 4 May 2023 and was chaired by Mr Stephen Bromhall who was an experienced disciplinary hearing and appeal hearing chair. He had undertaken the employee relationship training programme at the Trust and since then, had undertaken about a dozen of these hearings.

[70]The appeal took place over Teams. The panel was Mr Bromhall and Ben Wayland. HR support was provided and a different cultural ambassador attended. An administrator attended to take notes, and the Claimant was present with Donna Thomas, his trade union representative.

[71]In his statement of case for the appeal and at the appeal hearing, the Claimant expanded his grounds of appeal to include an allegation of discrimination, that the punishment did not fit the Trust’s assumptions, and a complaint that this was an unfair dismissal. He set out information about each of the four Caucasian male EMTs, who he believed had done more serious behaviour than he had in terms of inappropriate or sexual misconduct towards patients and not been dismissed. He refused to provide their names when asked to but stated that he believed that they had done ‘worse’ than him but had been dealt with more leniently. He thought that the disciplinary panel would have gone away and researched the cases and compared their details with the details of his case. He also referred to lots of other things that he considered were unfair in terms of race and/or sex. The Claimant called three people as character witnesses, to give evidence for him at the hearing.

[72]Ms Thomas said that she had given Mr King a name during the disciplinary hearing although he could not recall this at the Tribunal hearing. Institutional racism was also discussed at the appeal hearing. Mr King confirmed that the decision to dismiss the Claimant was made because of the seriousness of the proven allegations of misconduct against him, which had been outlined in the dismissal letter. He also confirmed that the panel had considered the character references that the Claimant provided.

[73]In the hearing the Claimant submitted a copy of the complaint that he made to Tom Abel and Allan Whitehead in August 2022 of what he believed was institutional racism towards him related to his progression to becoming a trained paramedic.

[74]He confirmed that the statement he gave on 5 Nov was incorrect and that this happened due to stress. Although he used the term ‘duress’ it is likely that he meant stress.

[75]Mr Bromhall told the Claimant and Ms Thomas that he did not consider that the appeal was to re-hear the Claimant’s disciplinary hearing but instead, it was to conduct an appeal against the sanction of dismissal. It was also an opportunity for the Claimant to bring any new evidence. At the end of the appeal hearing, Mr Bromhall informed the Claimant and Ms Thomas that the panel would get together on another day to discuss the case and reach a decision.

[76]The panel met on 9 May to deliberate on the appeal, discuss the evidence submitted and decide on the outcome. Mr Bromhall emailed the Claimant and Ms Thomas to confirm that the appeal panel had finalised deliberations and were available to deliver the outcome of the appeal. He asked whether they were available for a meeting. The panel unanimously decided that there was nothing raised in the appeal that cast doubt on the original decision to dismiss and they confirmed it. The outcome of the appeal was delivered verbally to the Claimant in a re-convened hearing on 9 May. This was confirmed in a letter dated 15 May 2023.

[77]The letter stated that the process followed by the disciplinary hearing panel was correct and followed the Respondent’s disciplinary process. The character witnesses did not assist the panel as these people had not been involved in the events that resulted in the Claimant’s dismissal, which meant that their evidence was of limited relevance. The panel considered that no new evidence had been presented which called into question the findings of the disciplinary hearing or rendered the decision to dismiss unfair or too severe.

[78]The appeal panel concluded that the Claimant’s dismissal was warranted on the facts of the Claimant’s case. The Claimant had refused to provide the appeal panel with the names of the previous cases he relied on to demonstrate unfair and discriminatory treatment. This meant that the appeal panel had no evidence on the comparators to consider. The appeal panel also concluded that each case was different and that there were nuances which required each case to be decided on its own merit.

[79]The Claimant agreed in the Tribunal hearing that there were significant differences between his case and that of the comparators that he relied on.

[80]The appeal panel concluded that the investigation had been comprehensive, and the Claimant had not identified any evidence or lines of enquiry that had not been followed. They also agreed with the sanction of dismissal imposed by the original disciplinary hearing panel, given the serious nature of the conduct that the Claimant was found to have done. A lesser sanction such as a final written warning would not have been suitable because the Claimant’s actions had the potential to cause harm to a vulnerable patient and he had breached the Respondent’s Safeguarding of Adults Policy. The appeal panel also considered the mitigating points such as length of service and the character witnesses but considered that the decision to dismiss was the correct on. The appeal panel upheld the Claimant’s dismissal.

[81]While they were waiting for the written confirmation of the appeal panel’s decision, Ms Thomas sent the Claimant a text message on 11 May that they should take his case to ACAS on the grounds of discrimination. Ms Thomas did not advise him of the three-month deadline for bringing complaints in the employment tribunal. This was the first time the Claimant had heard of ACAS.

[82]Ms Thomas was supposed to help the Claimant with the Tribunal claim form, but she did not do so. The Claimant told us that he simply ticked boxes in the ET1 claim form that he thought might apply to his case. He did not realise that there was the option of claiming unfair dismissal on the same form that he complained about race discrimination. After the text about ACAS, the Claimant told the Tribunal that Donna advised him to get on to the GMB union for legal for assistance in bringing his case, but it refused to help him. Donna advised him to apply to the Tribunal on his own.

[83]The Claimant told us that he was in a dark place after his dismissal was confirmed. We find it likely that he was troubled about it although there was no evidence of clinical depression, and we were not told that he was on any medication. Comparators

[84]In relation to the 4 comparators, we make the following findings: - the CQC conducted a routine inspection of the Respondent Trust during June 2020. The report produced on 30 September 2020 gave an overall rating for the Respondent of ‘requires improvement’. The report made some serious criticism of the Respondent and the way in which it handled safeguarding of patients, its failure to take appropriate action to ensure the safety of patients and staff with regards to sexual assault, harassment and/or other inappropriate behaviours and bullying. There was evidence that in some areas of the organisation there was acceptance of sexual harassment and inappropriate behaviour. Another concern expressed by the CQC was that the Respondent’s HR processes were inconsistent and that decisions with regards to disciplinary and grievance processes had not always met the trust’s values. At the time of the inspection, the disciplinary policy was from 2018 and under review.

[85]Based on the inspection and the report, the Trust was placed into special measures. The CQC also issued an urgent notice of decision which imposed conditions on the Respondent’s registration as a service provider in respect of regulated activities. The report outlined action that the Respondent had to take to ensure compliance with legal obligations. These included implementing an effective system to identify and assess any potential safeguarding issues and the management of vulnerable children and adults, undertaking a review of systems in place to protect staff and patients from inappropriate behaviour including sexual harassment and sexual assault and implementing a system to ensure that there are effective processes in place to manage concerns, grievances and disciplinaries.

[86]The Respondent began working on these recommendations straightaway. In April 2021, it signed a legally binding agreement with the Equality and Human Rights Commission so that it could consider taking enforcement action against the Trust following the CQC’s finding that it had not done enough to address serious incidents of sexual abuse against both patients and staff. The EHRC conducted a review of the evidence provided by the CQC and found that the Respondent had breached the Equality Act 2010 by failing to take appropriate steps to protect its staff from sexual harassment. As part of its work with the EHRC thereafter, the Respondent agreed an action plan which required it to, among other things, review its dignity at work policy to include a clear harassment strategy statement and procedure, deliver training for managers on the policies relevant to harassment including safeguarding, dignity at work and disciplinary processes and carry out a risk assessment to identify areas in the Trust where sexual harassment was most likely to occur and put mitigating actions in place.

[87]Following the CQC report, the Respondent made a number of changes to its HR processes and function, in particular, how it handled its employee relations cases. The Respondent has focused on ensuring that decisions in employee relations processes are more robust, that there is consistency in the staff members who handle ER processes, that those members of staff receive appropriate training and that there is greater oversight to ensure consistency in decision making. The HR team was completely reorganised so that a separate team was created with the sole remit of dealing with case work i.e. disciplinaries and grievances. The Respondent also created a team of investigators whose sole job was to investigate employee relations matters. Mr Umar was one of those investigators. Lastly, the changes also included having a group of dedicated disciplinary hearing chairs who were sufficiently senior within the organisation, to give some consistency and maturity to the role. There were three individuals on full-time secondment as disciplinary hearing chairs, Simon King being one of them. They received dedicated training and support from HR advisers. Panel chairs had to have someone else on the panel with them so that it was no longer a sole decision maker.

[88]In April 2022 the CQC conducted another inspection and produced a report in which it noted that the Respondent had made marked improvement on those issues which led to it being put in special measures. It was to remain in the recovery improvement programme for a while longer so that it continued to receive support to make the required changes. The special measures were lifted in January 2024 as the CQC recognised that the Respondent had successfully expanded its safeguarding policies and HR processes.

[89]This history was relevant to the issue of comparators as all of the comparator cases the Claimant referred to related to the period before the CQC report and the subsequent changes made by the Trust to its employee relations processes, and before it improved its approach to sexual harassment and position of trust cases.

[90]Dealing with the comparators now, we make the following findings of fact from the evidence given to us at this hearing, most of which was not before the appeal panel and all of which was not before the disciplinary panel. The comparators were referred to in the hearing as C1, C2, C3 and C4.

[91]In relation to C1, the allegations against him were not upheld and therefore it would not have been appropriate for the Respondent to consider any sanction against that employee.

[92]In relation to C2, the alleged improper conduct occurred in 2017, well before the CQC inspection and report. It is likely that the Respondent’s processes were lacking at that time and that there was an inconsistent approach to dealing with these types of complaints. The Respondent’s evidence was that if these exact same facts were found against a paramedic now, it would not permit such a case to go through the Fast Track process. We did not hear any more about the Fast Track process in the hearing, but it was referred to by the Respondent as a truncated version of the disciplinary process, with sanctions short of dismissal as the final outcome. We find that if the same facts as occurred with C2 occurred now, the employee would be subjected to the full disciplinary process as the Claimant was, with the possibility of dismissal as an outcome, depending on the circumstances. We make that finding based on the approach taken to the Claimant’s actions.

[93]In relation to C3, the alleged improper conduct occurred in 2018. It was the Respondent’s evidence that if it occurred in the period following the CQC’s inspection and report, the Respondent would have approached it completely differently and it is likely that C3 would have been dismissed due to the nature of the inappropriate conduct including contact with a vulnerable adult/patient and abusing the position of trust.

[94]In relation to C4, the Claimant disclosed a video showing a female member of staff confirming that she recognised that it was not professionally appropriate to contact a patient in a personal capacity when she had treating him, during her employment. We find that C4 had not contacted the patient, while that person had been a patient. Some months afterwards, they met by chance at the hospital - when the patient was no longer under the Respondent’s care. The Respondent did not know about this matter as there was no disciplinary proceedings and no complaint about C4. The Respondent only knew about C4 from the video the Claimant produced.

[95]We find that all of the matters that relate to C1, C2, C3 and C4 occurred many years before the incidents involving the Claimant. They were dealt with by other managers. Also, most importantly, they occurred when the Respondent’s approach to employee relations matters, HR processes, safeguarding concerns and protection of employees as well as patients was very different from the procedures in place at the Respondent when the SU made the comment to Ms Guinea, when she attended her home following an emergency call.

Law

[96]The Tribunal applied the following law to the facts found and set out above.

[97]The Claimant makes complaint of direct race discrimination and of unfair dismissal. Time point

[98]Following a period of early conciliation from 10 May 2023 to 16 May 2023 the Claimant presented his first claim on 31 May 2023, claiming race and sex discrimination. Following a further period of early conciliation from 11 May 2023 to 22 June 2023, the Claimant presented a second claim on 22 June 2023, claiming unfair dismissal.

[99]There are time limits which apply in relation to both of those claims. The complaints must be issued within 3 months. In respect of the dismissal, it must be brought to the employment tribunal within 3 months less one day of the date of dismissal. In respect of the complaint of discrimination, the complaints must be brought within three months of the date in which the alleged discrimination took place.

[100]The process of ACAS conciliation can extend time. Section 111(2) of the Employment Rights Act 1996 sets out that the employment tribunal shall not consider a complaint of unfair dismissal unless it is brought before the end of the period of three months beginning with the date of the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for it to have been brought before the end of that period of three months. If so, the Tribunal would not have jurisdiction to hear the claim. The burden of proving that this applies, is on the Claimant.

[101]As the Respondent submitted, it is a claimant’s duty to show precisely why it was that he did not present his complaint in time. In Porter v Bandridge Ltd

[1978] ICR 943

, where ignorance of the law was asserted as the reason a claim was late, the Court of Appeal made it clear that the onus was on the employee to satisfy the tribunal that he did not know of his rights and that there was no reason why he should make inquiries or should know of his rights during that period. It later formulated the question: ought the plaintiff to have known and, if he did not know, has the applicant given a satisfactory explanation of why he did not know of the time limits or the deadline or of the right to bring a claim.

[102]In the case of Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

the Court of Appeal suggested that ‘practicable' could be read as an equivalent to ‘feasible’ such that the test could be ‘was it reasonably feasible to present the complaint within the relevant three months?’. Which meant that it is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.

[103]If the claim was presented out of time because the claimant relied on incorrect advice from a trade union representative, then that does not get around the requirement that it should be brought within the relevant time limit. It does not excuse the claimant.

[104]The fact that someone is waiting on the outcome of an internal appeal against dismissal would not, without something more, justify a finding of fact that it was not reasonably practicable for the claim to be brought in time to the employment tribunal.

[105]In relation to the complaint of race discrimination, that complaint also has to be brought within 3 months. If it is not, the Tribunal has to consider whether it is part of a continuing act, the last of which is in time, and if not, whether it is just and equitable to extend time so that it has jurisdiction to address the complaint. Direct Race Discrimination

[106]Section 13 of the Equality Act 2010 (EA) states as follows: (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. Section 23 EA provides that: (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. If the Tribunal considers that a comparator was or would have been treated more favourably, it must consider whether this difference in treatment was due to the protected characteristic. This was referred to in the case of Nagarajan v London Regional Transport

[1999] ICR 877

as ‘the crucial question’. Lord Nicholls in that case observed that in most cases this will call for some consideration of the mental processes of the alleged discriminator. As the respondent submitted, the crucial question for the Tribunal, is why the Claimant was treated as he was. In the case of Madarassy v Nomura International Plc

[2007] IRLR 246

, the Court of Appeal stated that “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent has committed an unlawful act of discrimination.”

[107]The burden of proving a discrimination complaint rests on the employee bringing the complaint. However, it has been recognised that this may well be difficult for an employee who does not hold all the information and evidence that is in the possession of the employer, and because it relies on the drawing of inferences from evidence. This is addressed in section 136(2) of the Equality Act which states that: “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. [But] if this does not apply if A shows that A did not contravene the provision.” There is a substantial volume of case law that seeks to provide guidance on the concept of the “shifting burden of proof”.

[108]In the case of Laing v Manchester City Council (EAT) ICR 1519 the EAT spelt out how the burden of proof provisions should work in practice: “First, the onus is on the complainant to prove facts from which a finding of discrimination, absent an explanation can be found. Second, by contrast, once the complainant lays that factual foundation, the burden shifts to the employer to give an explanation. The latter suggests that the employer must seek to rebut the inference of discrimination by showing why he has acted as he has. That explanation must be adequate, which as the courts have frequently had cause to say does not mean that it should be reasonable or sensible but simply that it must be sufficient to satisfy the tribunal that the reason had nothing to do with race.”

[109]In the same case tribunals were cautioned against taking a mechanistic approach to the proof of discrimination in following the guidance set out above. In essence, the claimant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the complainant. The tribunal can consider all evidence before it in coming to the conclusion as to whether or not a claimant has made a prima facie case of discrimination (see also Madarassay v Nomura International Plc

[2007] IRLR 246

[110]If, at the end of its analysis the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, then that is sufficient to establish discrimination. It need not be the only or even the main reason.

[111]As Elias J stated in the case of Laing in some cases it is still appropriate to go right to the heart of the question of whether or not the protected characteristic was the reason for the treatment. “The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’. Whilst ….it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error in law to fail to do so.”

[112]If the burden does shift, the employer is required only to show a nondiscriminatory reason for the treatment in question; it is not required to show that it acted reasonably or fairly in relying on such a reason. “The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the Claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.” (See the judgment in the case of London Borough of Islington v Ladele

[2009] IRLR 154

per Elias J). Unfair Dismissal

[113]Section 94(1) Employment Rights Act 1996 (ERA), states that an employee has the right not to be unfairly dismissed by his employer. Section 98(1) and (2) states that it is for the employer to show the reason for the dismissal and in the context of this case, that it was for misconduct.

[114]The case of BHS Ltd v Burchell

[1980] ICR 303

sets of the relevant considerations for a tribunal when assessing the fairness of a dismissal for misconduct. The employer must firstly, hold a genuine belief that the employee had committed misconduct. The employer is not required to have conclusive, direct proof of the employee’s misconduct but only a genuine belief. Secondly, the employer must have reasonable grounds for that belief; and thirdly, it must have been derived from a reasonable investigation.

[115]If the Tribunal concludes from all the evidence that this is the case; then the next step for the Tribunal is to decide whether, taking into account all the relevant circumstances, including the size of the employer’s business and the substantial merits of the case, the employer has acted reasonably in treating it as a sufficient reason to dismiss the employee. In determining this, the Tribunal must be mindful not to substitute its own views for that of the employer. Whereas the onus is on the employer to establish that there is a fair reason for the dismissal and that the employee was indeed dismissed for that reason; the burden in this second stage is a neutral one. The Burchell test applies here again, and the tribunal must ask itself whether what occurred fell within the “range of reasonable responses” of a reasonable employer.

[116]As Browne-Wilkinson J said in the case of Iceland Frozen Foods v Jones

[1982] IRLR 439

, “the function of the Tribunal as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal is outside of the band it is unfair.” Decision – applying law to facts The Tribunal refers to the list of issues set out by EJ Gardiner at the case management hearing on 21 November 2023 Taking the issues set out at in the documents beginning at page 96 Item 1.3 – Unfair Dismissal

[117]The Claimant was dismissed on 1 February 2023. Three months from that date takes us to 1 May, less one day is 30 April. The complaint of unfair dismissal should have been issued in the employment tribunal by 30 April. As the ACAS process began on 10 May, it began after the expiry of 3 months, which means that the Claimant does not get the benefit of any extension based on the period covered by the ACAS process. The complaint of unfair dismissal was not issued until 22 June, at the end of the conciliation process, which means that it had been brought to the Tribunal 53 days late.1.3.1 It is this Tribunal’s judgment that the claim was not brought to the Tribunal within the period of three months of the effective date of termination.

1.3.2 Was it reasonably practicable for the Claimant to have issued his Unfair Dismissal complaint in time? What’s the reason for it being issued when it was?

[118]The Claimant’s evidence was that he did not know of the relevant time limits, that he had difficulty contacting his union representative and that he did not know what he was doing. His evidence was that he had to do this on his own since the union legal team would not support him and he did not get any legal advice but did speak to a friend who was a solicitor but not an employment lawyer.

[119]It is our judgment that the Claimant relied on his trade union representative, Donna Thomas. However, Ms Thomas did not promise the Claimant that she would issue his claim for him. She did not undertake to issue the claim for him. She assisted him with the internal processes – the disciplinary and appeal hearings and also helped him prepare for those hearings and source character witnesses. It is our judgment that it is likely that both the Claimant and Ms Thomas thought that the Claimant would be successful in getting reinstated on appeal and that they would not need to take any further action. Ms Thomas clearly knew about ACAS and the procedure to bring a claim as, as soon as they knew the outcome of the appeal hearing, she texted the Claimant about going to the Tribunal. Before that, it is our judgment that both the Claimant and Ms Thomas believed that by providing the Respondent with the details of the comparators, that would be enough to get him reinstated and he would not need to bring a claim to the Tribunal. In the event it was not sufficient and once they were told that the appeal had failed and his dismissal was confirmed, Ms Thomas set the wheels in motion to issue the claim. it is our judgment that the Claimant was not lacking in knowledge about the employment tribunal but instead, made a decision to wait for a different outcome from the appeal process, before taking action.

[120]There was a further delay as, even when he brought the first complaint of discrimination, the Claimant did not tick the unfair dismissal box. In our judgment, the boxes in the ET1 are clear. We do not have a clear, cogent reason from the Claimant as to why he did not bring a complaint of unfair dismissal at the same time as he brought the discrimination complaints in May. There is further delay until 22 June when the complaint of unfair dismissal was issued in the employment tribunal. It is therefore the Tribunal’s judgment that the unfair dismissal complaint was not brought within the three-month time limit and was not brought within a reasonable time thereafter.

[121]In all the circumstances, it is this Tribunal’s judgment that it was reasonably practicable for the Claimant to have brought his complaint of unfair dismissal in time. The Claimant did not bring it in time.

[122]The Tribunal has no jurisdiction to consider his complaint of unfair dismissal.

[123]The complaint is dismissed.

[124]The Tribunal then considered the Claimant’s discrimination complaints and whether they were in time as set out in section 1.2 of the list of issues. Race and sex discrimination complaints

[125]Those were brought to the Tribunal in the first complaint on 31 May 2023. Those relate to the dismissal and the failure of the appeal.

[126]The Claimant’s discrimination complaints are of direct race discrimination about his dismissal and subsequent unsuccessful appeal against dismissal, and direct sex discrimination about his dismissal and subsequent unsuccessful appeal against dismissal. There is no dispute that the decision to dismiss the Claimant and the subsequent rejection of his appeal both amount to detriments.

[127]The Claimant was dismissed on 1 February 2023. The Claimant’s appeal against dismissal took place on 4 May and he was notified of the outcome on 9 May. The date of the failed appeal is therefore considered to be 9 May.

[128]The complaints regarding the Claimant’s failed appeal against dismissal were therefore brought to the employment tribunal within the relevant time limits.

[129]Issue 1.2.1 - it is therefore this Tribunal’s judgment that the complaints of race and sex discrimination regarding the unsuccessful appeal were made within time.

[130]In relation to the complaint about the dismissal, it is our judgment that in his claim form to the employment tribunal, the Claimant is complaining about both his dismissal and appeal. By the time he issued the claim form the Claimant referred to his race as an issue in both his dismissal and the appeal. In paragraph 43 of EJ Gardiner’s case summary, he recorded that the claim was about whether the decision to dismiss the claimant and to reject his appeal were acts of race and sex discrimination. We have found that the Claimant, through Ms Thomas, referred to comparators in the disciplinary hearing and referred to them in significantly more detail at the appeal. He was clearly referring to them as being treated more favourably than him in both the dismissal and in the appeal hearings.

[131]It is also our judgment that the dismissal and the appeal are connected although they are two separate decisions made by two different managers.

[132]His discrimination complaint is that he lost his job because of his race and his sex. This would include the dismissal and the confirmation of the dismissal by the appeal.

[133]We considered that the Claimant was a litigant in person and that he never took legal advice on his case. He spoke to the GMB legal services, and they refused to assist him. We do not know whether this assessment included someone looking at papers or whether it was just a telephone conversation or otherwise. The Claimant never withdrew his complaint about the dismissal and the appeal.

[134]It is our judgment that the Claimant was complaining in his ET1 claim form about both the dismissal and the appeal as acts of race and sex discrimination and that he did not withdraw the complaint that his dismissal was discriminatory.

[135]It is our judgment that the complaints about the dismissal are out of time, but we extend time on a just and equitable basis to allow us to consider them. The Claimant meant to complain about both and waited until the outcome of the appeal before doing so. He included it all in the first claim form.

[136]In this Tribunal’s judgment, the Tribunal has jurisdiction to consider his complaints of discrimination in relation to the dismissal and the appeal. Race discrimination

[137]Are there facts from which we can infer that the decisions to dismiss the Claimant and to not uphold his appeal was on the ground of race?

[138]It is our judgment that in deciding on the proper sanction for his conduct, the Respondent considered the Claimant’s mitigation and but did not investigate the potential comparators. It is more likely than not that at the disciplinary hearing, the Claimant and Ms Thomas referred to a comparator but did not name that person. When she was asked, Ms Maunder reassured the panel that any cases that did exist were not sufficiently similar to warrant further consideration. On that basis, they did not look any further into it.

[139]Even if Ms Thomas gave Mr King a name of a comparator at the disciplinary hearing, we would need to consider whether there was evidence that the reason why he failed to investigate further was the Claimant’s race or whether race was the main reason why, as the Claimant made the comparison on the basis of race.

[140]Ms Maunder was an experienced HR person. The panel relied on her knowledge of the previous cases.

[141]At the disciplinary hearing and at the appeal, Ms Thomas did not refer to specifics of cases or provide names of the ambulance staff/EMTs she believed had behaved in a similar way to the Claimant. The panel was not provided with the specifics of the cases that we were given in the Tribunal hearing. Ms Thomas later stated at the appeal that she had given Mr King a name at this hearing, but this was not recorded in the minutes and Mr King did not recall it. It is unlikely that she did so.

[142]The Claimant provided more details at the appeal to suggest that it ought to be considered. He highlighted his belief that all four were white and that this difference in race is what caused the difference in treatment.

[143]In its submissions the Respondent stated that they would have expected the Claimant to bring the information about these potential comparators to the appeal hearing but as these were confidential details of other employees, it is highly likely that the Respondent would have been concerned if the Claimant had been in possession of the names.

[144]We took into consideration the Claimant’s agreement in the hearing that there were significant differences between him and the comparators he relies on.

[145]In relation to the issues set out on page 98: - 4.3 – the less favourable treatment the Claimant alleges, was firstly - the failure to look into the facts surrounding these comparators to see whether they were actual comparators in the sense of section 13 of the Equality Act and whether the decision to dismiss the Claimant was in line with those decisions.

[146]Secondly, the less favourable treatment alleged was the decision to dismiss the Claimant whereas these individuals – especially C2 and C3 – who were also employees of the Respondent in positions of trust who had acted inappropriately and committed sexual misconduct – were not dismissed but given lesser sanctions and allowed to keep their employment.

[147]We do not agree with the Claimant that C4 is a proper comparator as there was no inappropriate conduct by the employee, while the patient was a patient of the Respondent. The relationship between the EMT and the member of the public happened once that person had ceased to be a patient.

[148]The next question for the Tribunal was – was the difference in treatment in those two scenarios because the Claimant was black? Was the difference in treatment because of the Claimant’s race?

[149]It is our judgment that these proceedings came about because of the Hannah Guinea’s conversation with the SU where she described her interactions with the Claimant. Ms Guinea did not know who the Claimant was, and she did not know his race. She the right thing by reporting this to her manager and making a Datix. In the circumstances, it is our judgment that if a white Senior EMT had a similar Datix report made about him, the Respondent would have reacted in the same way and instigated an investigation and disciplinary process, which would have likely led to his dismissal.

[150]Ms Maunder told the panel that there were no relevant comparators and that they should make a decision based on the facts in front of time. As far as she was aware, that was the case. It is our judgment that we did not have evidence that Ms Mauder was aware of the details of the cases of C2 and C3 at the time that she gave that advice to the disciplinary panel. Even at the appeal hearing, when asked, the Claimant refused to give names of the comparators to the panel. In our judgment, he did not help the investigation that he stated to us that he wanted. Even at the appeal stage, the HR rep had no further information on these comparators and neither did Ms Thomas.

[151]Mr King at the disciplinary hearing and later, Mr Bromhall at the appeal, both considered that they had dealt with the Claimant based on the evidence in front of them. In our judgment, that is what they did. They considered that they had to decide on the appropriate sanction for the Claimant based on the circumstances of what happened between him and the SU and on the mitigation the Claimant relied on and the Respondent’s safeguarding policies and its Code of Practice.

[152]It is our judgment that the Respondent could have adjourned the appeal hearing and HR could have been asked to provide details of the comparators. However, the Respondent had nothing to go on at that time as the Claimant had not given them a name of a comparator. Also, the Respondent chose not to do so as the chair was satisfied that the panel’s decision was based on the evidence that he had of the Claimant’s actions, and he relied on HR’s advice that there were no comparable situations.

[153]It is our judgment that the decisions to dismiss the Claimant and the decision to reject the appeal were both based on the facts presented to the panels. The decisions to proceed with the dismissal, to confirm the dismissal and not to delve further into the issue of comparators were all based on the facts, on Ms Maunder’s reassurance at the disciplinary hearing that there were no proper comparators and on the Claimant’s reluctance to provide further information when asked.

[154]The Tribunal found no facts from which it could infer that the Respondent’s decision to dismiss the Claimant was in anyway related to his race. The Tribunal found no facts from which it could infer that the Respondent’s decision not to investigate the comparators vaguely referred to by the Claimant in his statement of case for the appeal was in any way related to his race.

[155]The Claimant was unhappy about the decision not to investigate the cases of these comparators as he felt that they were significant to his case. However, on closer examination, it is apparent that these were not proper comparators, which the Claimant accepted in the Tribunal hearing. Their cases were different to the Claimant’s case. Significantly, they occurred before the Respondent changed and significantly improved its approach to complaints regarding safeguarding. It had also since re-organised its HR function and streamlined the conduct of disciplinary and appeal hearings. Since the CQC inspection and report of 2020, the Respondent has trained its hearing chairs to recognise these types of inappropriate behaviour and address it as serious misconduct whereas before the CQC inspection, that may not have been so clear. We accept the Respondent’s evidence that C2 and C3’s cases would not come to the same result if they occurred now.

[156]It is our judgment that C1 was not found to have committed misconduct and therefore is not a proper comparator. Unlike the Claimant, C4 did not behave inappropriately to a patient, while they were a patient. The SU in this case was clearly still seeking medical attention from the Respondent at the time that she was also in contact with the Claimant.

[157]It is therefore our judgment that even if the Respondent had adjourned the appeal hearing and more details of these cases had been brought to Mr Bromhall, it was unlikely to have changed his decision to uphold the Claimant’s dismissal.

[158]It is also our judgment that there was no evidence that the Claimant’s race or sex was the reason for the Respondent’s decision to continue with the appeal hearing rather than adjourning it so that it could investigate the comparators’ details.

[159]As far as a hypothetical comparator is concerned there were no facts from which the Tribunal could infer that if a white man had conducted himself in the same way that the Claimant had, from 25 to 27 August 2022 in relation to a very vulnerable patient, they would not have been dismissed. It is our judgment that it is likely that if a white man had conducted himself in the same way in 2022, given the re-organisation that had taken place within the Respondent, that person would have been disciplined and dismissed.

[160]The Tribunal is clear that the Claimant has failed to prove facts from which we could conclude that there was any connection between the Claimant’s complaint in 2022 about difficulties in become a paramedic and the subsequent disciplinary proceedings in 2023.

[161]The Claimant was treated worse than C2 and C3 in that he was dismissed while they remained in employment following their disciplinary hearings, but it is our judgment that that was not because of his race or his sex. The Claimant was treated worse that C2 and C3 because they were dealt with under a different regime where the Respondent was not performing properly, and its processes were inadequate as far as it related to safeguarding and disciplinary matters and needed to be overhauled.

[162]In our judgment, it would not have been appropriate for the Respondent to have imposed a lesser sanction on the Claimant to keep in line with the sanction imposed on C2 and C3, while acknowledging that those decisions had been wrong and were not in keeping with a proper, functioning safeguarding policy and procedure. As a public body, the Respondent has obligations to patients, staff and users to uphold safeguarding and apply proper HR policies and processes. The decision to dismiss the Claimant was in keeping with those principles.

[163]In the circumstances, the complaints of race and sex discrimination fail and are dismissed.

[164]The Claim fails and is dismissed. Approved by: