Mr F Lindsay v London Borough of Newham: 3201205/2024
EMPLOYMENT TRIBUNALS
Case No 3201205/2024
Between
Mr Ferris LindsayClaimantLondon Borough of NewhamRespondent
Before
Employment Judge S PoveyIn person for claimantMS CHAN (instructed by COUNSEL) for respondentDate 27 March 2025
JUDGMENT
[1]The complaint of unfair dismissal is not made out and is dismissed.[2]The complaint of wrongful dismissal is not made out and is dismissed.
REASONS
[1]At the culmination of the hearing on 19 March 2025, I reserved my judgment due to lack of time. These are my decisions and reasons.
Background
[2]This is a claim brought by Ferris Lindsay (hereafter referred to as the Claimant) against his former employer, the London Borough of Newham (hereafter referred to as the Respondent). Following a period of ACAS Early Conciliation (from 23 March 2024 to 25 April 2024), the claim was presented to the Employment Tribunal (‘the Tribunal’) on 13 May 2024.[3]The Claimant was employed by the Respondent as an ESOL Tutor from 1 September 2011 until the termination of his employment with effect from 9 February 2024. The Claimant brings complaints of unfair dismissal and wrongful dismissal (in respect of unpaid notice pay). The complaints are resisted in their entirety by the Respondent. - 1 -[4]At the hearing on 18 & 19 March 2025, I heard oral evidence from the Claimant and, for the Respondent, I heard from Jaspal Dhaliwal (who chaired the disciplinary hearing) and Darren Mackin (who chaired the appeal hearing). Each witness adopted their written statements. I was provided with an indexed, paginated bundle of documents (‘the Bundle’). I also received submissions from Ms Chan for the Respondent and from the Claimant[5]The Claimant was a litigant in person. I explained the process and procedures to him, checked his understanding, encouraged him to ask questions and gave guidance throughout. I was satisfied that the Claimant was able to fully engage in the process and present his claim to the best of abilities. Indeed, I was impressed by the Claimant’s clarity and focus, his understanding of the importance of the issues in the case and the adept and professional manner in which he questioned the Respondent’s witnesses.[6]I was grateful to Ms Chan and the Claimant for the assistance they provided and the work they had undoubtedly undertaken both before and during the hearing. I was also grateful to all the witnesses, including the Claimant, who attended and answered the questions asked of them.[7]I have taken all the evidence I have seen and heard and the parties respective submissions into account in reaching my decision. The Law Unfair Dismissal
The Law
[8]By virtue of section 94 of the Employment Rights Act 1996 (‘ERA 1996’) an employee has the right not to be unfairly dismissed by his employer. In respect of what constitutes an unfair dismissal the relevant law is to be found within section 98 of the ERA 1996.[9]Section 98(1) requires that in deciding whether a dismissal was unfair it is for the employer to show the reason for that dismissal. That reason must fall within a list of potentially fair reasons to be found within Section 98(2) of which subsection (2)(b) states: “A reason falls within this subsection if it relates to the conduct of the employee.”[10]Section 98(4) of ERA 1996 requires the Tribunal to consider whether the employer acted reasonably in dismissing the employee for one of the reasons in Section 98(2). In a conduct dismissal, the Tribunal is bound to consider the guidance issued by the Employment Appeals Tribunal in the Courts (including the decisions in British Home Stores Ltd v Burchell [1978] 379, Iceland Frozen Foods Ltd v Jones [1993] ICR 1, Post Office v Foley [2000] IRLR 827, Sainsbury’s Supermarkets v Hitt [2003] IRLR 23). - 2 -[11]In particular, the case law requires me to consider four sub-issues in determining whether the decision to dismiss on the grounds of conduct was fair and reasonable: 11.1. Whether the employer genuinely believed that the employee had engaged in conduct for which he was dismissed; 11.2. Whether they held that belief on reasonable grounds; 11.3. Whether in forming that belief they carried out proper and adequate investigations, and 11.4. Thereafter, whether the dismissal was a fair and proportionate sanction to the conclusions they had reached.[12]It is possible for an employee to be signed off sick from one job and in receipt of contractual sick pay or SSP and, at the same time, to be legitimately working in a second job. However, this will depend on the particular facts of the case (per Perry v Imperial College Healthcare NHS Trust EAT 0473/10; Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626).[13]In Brito-Babapulle , Bean LJ observed that the general principle in cases where an employee claims to be unable to work due to sickness but nevertheless works for another employer had been correctly set out by the EAT in the proceedings below, where it had stated: The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. This is not, however, to say that it is an inevitable conclusion.[14]The Tribunal must consider the reasonableness of the employer’s decision to dismiss and, in judging the reasonableness of that decision, the Tribunal must not substitute its own decision as to what was the right course to adopt for the employer. Rather, the Tribunal must consider whether there was a band of reasonable responses to the conduct within which one employer might reasonably take one view whilst another quite reasonably takes a different view. Our function is to determine whether in the circumstances of the case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band it is fair. If it falls outside that band, it is unfair.[15]The Tribunal is also required to consider the fairness of the procedure that was followed by the employer in deciding to dismiss the employee. However, if the procedure followed was unfair, the Tribunal is not allowed to ask itself whether the same outcome (i.e. dismissal) would have - 3 - resulted anyway, even if the procedure adopted had been fair (per Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL).[16]The requirement for procedural fairness includes consideration of the reasonableness of the decision to dismiss up to and including any appeal process undertaken (West Midlands Co-operative Society v Tipton 1986 ICR 192, HL). Wrongful Dismissal[17]By virtue of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 SI1623, proceedings may be brought before the Tribunal in respect of a claim of an employee for the recovery of damages or any sum for breach of a contract of employment where the claim arises or is outstanding on the termination of the employee’s employment.[18]Section 86 of the ERA 1996 affords rights of notice to employees, the length of which is determined by their period of continuous employment with their employer. Any failure by the employer to give correct notice constitutes a breach of his contract of employment, save where either the employee waives his rights to, or accepts payments in lieu of, notice. In addition, an employer is entitled to dismiss an employee without notice where satisfied that the employee’s conduct amounted to a repudiatory breach of the employment contract and discloses a deliberate intent to disregard the essential requirements of that contract. The employer faced with such a breach by an employee can either affirm the contract and treat it as continuing or accept the repudiation, which results in immediate dismissal.
Findings of Fact
[19]It was not in dispute that: 19.1. The Claimant was employed from 1 September 2011 (under a series of temporary contracts); 19.2. The Claimant was dismissed with immediate effect on 9 February 2024; and 19.3. The reasons relied upon by the Respondent for dismissing the Claimant related to his conduct.[20]So far as relevant, the Respondent had an Employee Code of Conduct and a Disciplinary Policy, both of which were in evidence (at [208] – [223] and [224] – [233] of the Bundle respectively).[21]Under the Claimant’s contract of employment (which began at [31] of the Bundle), he was required to work during the academic term times, which necessitated 25 hours per week for 36 weeks of the year (at [33]). His contract also confirmed his entitlement to sick pay if absent from work - 4 - due to ill-health (at [34]), confirmed that his employment was subject to the Employee Code of Conduct and the Disciplinary Policy (at [35]), and required him to declare any private interests that may conflict with his employment with the Respondent (at [36]).[22]In his oral evidence, the Claimant confirmed that he had received and read the Employee Code of Conduct on 20 April 2024, at the latest.[23]So far as relevant, the Employee Code of Conduct included the following provisions (variously at [210], [217] & [221] – [222] of the Bundle): 1.0 Attendance and Timekeeping … c) Employees on sickness absence must not undertake any other work, or carry out activities that could hinder their return to work, without prior authorisation from their Head of Service; … 4.3 Declaration of Interests The Council requires employees to make a written declaration of their principal private interests. The declaration will be held by the Authority in a Register of Officers’ Interests. All employees must declare private interests in line with the declaration of interests policy which covers the following areas: a) The Council requires employees to make a written declaration of their principal private interests. The declaration will be held by the Authority in a Register of Officers’ Interests. All employees must declare private interests in line with the declaration of interests policy which covers the following areas; b) Employees on Scale Point 23 or above must not engage in any other work or take up any additional appointment, whether paid or voluntary, without the express written consent of their Executive Director; … 8.0 Gross Misconduct Gross misconduct includes any conduct which amounts to a fundamental breach of the contract of employment and which destroys the trust and confidence the Council has in the employee and makes any further working relationship impossible. If substantiated following an investigation and a disciplinary hearing the employee would normally be summarily dismissed from the Council’s service. Summarily dismissed is dismissal without notice or prior warnings. Gross misconduct could be a serious breach of one of the standards listed above and some examples of Gross misconduct may be: … h) While purporting to be absent sick, working or indulging in activities which are likely to be inconsistent with the reason for absence and/or which are unlikely to be conducive to recovery; - 5 - i) Theft, fraud and deliberate falsification of records, e.g. overtime, working whilst off sick, nonattendance at day release, use of council time for non council work or similar, falsification of expenses including purchase card transactions, falsification of car loan details, etc; …[24]It was not in dispute that the Claimant was employed at Scale Point 30, which is above Scale Point 23.[25]In summer 2023, the Claimant had been diagnosed with myasthenia gravis (having previously been subject to diplopia or double vision). These conditions resulted in the Claimant being certified as not fit for work by his GP for the following periods (per fit notes at [268] – [271] of the Bundle): 25.1. 17 April 2023 – 2 May 2023 25.2. 2 May 2023 – 28 May 2023 25.3. 14 June 2023 – 14 July 2023 25.4. 11 July 2023 – 11 September 2023[26]The fit notes clearly recorded that the Claimant was not fit for work. The alternative option, that he may be fit for work subject to adjustments by the employer (including a phased return to work) were deleted by the GP on every occasion. If the GP had been of the medical opinion that the Claimant could have returned to work on a phased basis, it was reasonable to conclude that they would have said so.[27]The fit notes were obtained by the Claimant and provided by him to the Respondent. It was the Claimant’s decision to seek the advice of his GP about his fitness for work and the Claimant’s decision to act on that advice by providing the fit notes to the Respondent in support of his sickness absence. It was reasonable to conclude, having regard to his employment contract, that the Claimant received some or all of his wages whilst off work, in the form of sick pay.[28]The Claimant undertook a phased return to work on 5 June 2023. The proposal was for the phased return to run until the end of term (a period of six weeks), with a review after four weeks (per the email of 26 May 2023 from the Claimant’s line manager, Roxana Jobson to the Claimant, at [44] of the Bundle). The Claimant was also asked to provide confirmation from his GP that he was fit for a phased return and there was an enquiry about any other adjustments which he might require. Arrangements were also made for the Claimant to be seen by occupational health (‘OH’).[29]The plan had been to increase the Claimant’s hours in increments (at the time, whilst he was contracted to work 24 hours per week, he had been timetabled for 20 hours per week, per Ms Jobson’s email of 26 May 2023, - 6 - at [44] of the Bundle). However, by 13 June 2023, the Claimant informed the Respondent that he was not ready to increase his phased return to 15 hours per week (up from 10 hours). The following day, the Claimant provided the Respondent with a fit note which recorded that he was no longer fit for work.[30]There was evidence of email exchanges between the Claimant and an outside body that he was proposing to undertake work for whilst off sick (the ESOL Exchange). Initially, on 26 June 2023, the Claimant wrote to Anne Crisp of the ESOL Exchange as follows (at [50] of the Bundle): I am not up to taking on my teaching duties at [the Respondent] at this time. I’m happy to be taking on one 90 minutes off training [for the ESOL Exchange].[31]It appeared that this potential job came to the Respondent’s attention, as Ms Jobson emailed the Claimant on 27 June 2023 with the following (at [51] of the Bundle): In our conversation it was brought to your attention that working for another organisation whilst on sick leave with [the Respondent] is a contravention of the sickness absence policy and it is a breach of the Employee Code of Conduct.[32]A further copy of the Employee Code of Conduct was attached to the email. In response, the Claimant cancelled the planned training session for the ESOL Exchange.[33]As indicated above, the Respondent referred the Claimant to OH, who produced a report on 3 July 2023 (at [272] – [273] of the Bundle). This confirmed the following: 33.1. That the Claimant’s symptoms worsened when he was tired, fatigued and stressed; 33.2. That as a result those symptoms were likely to be more pronounced toward the end of the day; 33.3. That he could benefit from mini-breaks; and 33.4. He should avoid physical exertion.[34]On 13 July 2023, the Claimant reiterated to Ms Jobson that he was “not ready to return to a 15 hour week at this point” (at [52] of the Bundle).[35]On or around 3 September 2023, the Respondent was made aware that, during his sickness absence, the Claimant had been working and teaching for a number of different employers and also in a self-employed capacity. That information had been alluded to in a blog which was published by the Claimant. In response, the Respondent asked Alice McFarlane to undertake an investigation. - 7 -[36]The Claimant returned to work from his most recent period of sickness absence on 11 September 2023.[37]The Claimant was interviewed by Ms McFarlane as part of her investigations on 9 November 2023. During that interview, the Claimant confirmed that whilst signed off as unfit to work, he had undertaken work in four other roles: 37.1. As an internal quality assessor; 37.2. Running a chess club for primary school children; 37.3. Teaching English to a group of teenagers via Zoom; and 37.4. Running a conversational club on Saturdays.[38]The Claimant stated that he was able to undertake these roles as they were less demanding than his job with the Respondent.[39]It was not in dispute that the Claimant did not make any formal declaration to the Respondent regarding his other jobs, although the Claimant claimed that, by reason of previous emails and the provision of his CV during his employment, the Respondent was aware of his other tutoring activities.[40]It was also not in dispute that the Claimant never obtained express written consent to undertake any of this work from his Head of Service or Executive Director (as required by the Employee Code of Conduct).[41]Following the interview, on 12 November 2023, the Claimant provided Ms McFarlane with written notes of clarification (at [112] – [114] of the Bundle). In it, he set out his role for the Respondent, the history of his health & sickness absences, the work he had undertaken whilst off sick and his belief that, contrary to the opinion of his GP, he had been fit for a phased return to work during this period.[42]Ms McFarlane produced her investigation report on 28 November 2023 (at [121] – [131] of the Bundle). In it, she reached the following conclusions (at [129]): It was alleged that [the Claimant] had been working whilst absent from his role with [the Respondent] due to illness. When he was interviewed he confirmed that he had been working in four roles whilst he was absent from [the Respondent], but that these had begun at the same time he began a phased return to work in May 2023, which was stopped when he obtained a further fit note from his Doctor which stated he was not fit for work. These roles were, he informed me, significantly different to that of his role as a [Respondent’s] tutor as they were smaller groups, for shorter periods of time and did not require preparation or marking. They were, he also states, roles that he undertakes outside of his normal hours with [the Respondent] as he is employed four days a week. He believes that this employment did not hinder his recovery. - 8 - However he began these roles prior to his return to work which began in June, rather than at the same time. It is not known whether he would have been able to complete more hours with [the Respondent] had he not been doing these roles but to a certain extent this is not relevant as his return to work was ended by his fit note which stated he was not fit to work. He was advised after his initial phased return to work that working for another organisation whilst on sick leave was a breach of the code of conduct. He continued to undertake his employment in the other roles after this. [The Claimant] confirmed that he has not completed a declaration of interests in relation to his other employment. He states though, that his colleagues and managers are aware of his jobs as this was the reason he changed his working hours the previous year.[43]Ms McFarlane went on to recommend that a disciplinary hearing should be convened, given the seriousness of the issues and the implications in terms of employee/employer trust. She was also of the view that working whilst absent due to sickness, if proven, was a potential act of gross misconduct.[44]On 16 January 2024, the Claimant was invited to the disciplinary hearing (scheduled for 8 February 2024). He was informed of the allegations he was facing, as follows (at [133] of the Bundle): The allegation(s) to be considered are as follows:• Breach of Employee Code of Conduct – In relation to you conducting work whilst reporting to be absent from work due [sic] sickness.• Breach of Employee Code of Conduct – In relation to failing to complete a declaration of interest advising the Council of work Interests which [sic] of a similar nature to your paid contractual work.[45]The Claimant was provided with the investigation report and supporting documents, and informed that he was facing allegations that potentially constituted gross misconduct, with a possible outcome being dismissal. The Claimant was also asked to provide details of any witnesses he wanted to call (the Claimant confirmed that he did not wish to call any witnesses) and to provide any documentary evidence that he wished to rely upon. He was also informed that he could be accompanied by a work colleague or trade union representative and, if he did not have a trade union representative, he could be accompanied by a friend or family member (at [133] – [134]).[46]The disciplinary hearing took place as planned on 8 February 2024 and was chaired by Mr Dhaliwal. The minutes were in evidence (starting at [141] of the Bundle). The Claimant was able to present his case and raise the issues he wished the Respondent to have regard to. His brother attended with him for support.[47]The Claimant raised in these proceedings that his brother was not permitted to speak on his behalf. However, it was not in dispute that: - 9 - 47.1. The Claimant’s brother was not employed by the Respondent; 47.2. Whilst his brother was a member of the Transport & General Workers Union (‘TGWU’), the Claimant was not; and 47.3. There was no evidence (nor was it suggested) that the TGWU was a union recognised by the Respondent.[48]In reality, the Claimant’s brother attended as a family member and to support the Claimant. In addition, it was clear from the minutes of the meeting that the Claimant was more than capable of presenting his case and was in no material way prejudiced by his brother not being permitted to speak on his behalf (indeed, as will be seen, when his brother was permitted to speak for him at the appeal hearing, the Claimant preferred to speak on his own behalf in any event).[49]On 9 February 2024, the Respondent informed the Claimant of its decision in writing (at [151] – [154] of the Bundle). The allegations had been found proven and found to constitute gross misconduct. As such, the Respondent had decided to dismiss the Claimant with immediate effect. The letter set out the reasons for finding the allegations made out and the reasons for concluding that the Claimant had been guilty of gross misconduct. Mr Dhaliwal explained that whilst he had regard to the Claimant’s mitigation, that did not, in his view, outweigh the seriousness of the proven conduct.[50]The Claimant was given a right of appeal, which he exercised. The Claimant provided written submissions and further evidence in support of his appeal (at [159] - [182] of the Bundle).[51]On 23 May 2024, the Respondent invited the Claimant to an appeal hearing scheduled for 21 June 2024 (at [183] – [184] of the Bundle). He was again afforded the opportunity to call any witnesses he wished to rely upon and to be accompanied to the hearing. Again, the Claimant did not call any witnesses. The appeal was by way of a review of the disciplinary decision, as opposed to a complete re-hearing.[52]The appeal hearing took place on 21 June 2024 and was chaired by Mr Mackin. Minutes of the hearing were in evidence (starting at [187] of the Bundle). The Claimant was able to present his case, with the assistance of his brother (who attended and was permitted to speak on behalf of the Claimant, albeit the Claimant chose to present the case himself).[53]By a letter dated 11 July 2024, Mr Mackin upheld the decision of the disciplinary officer and rejected the Claimant’s appeal. He did so because he concluded that the allegations against the Claimant were proven and constituted gross misconduct (at [189] – [190] of the Bundle). - 10 - Analysis & Conclusions: Unfair Dismissal[54]It was not in dispute that the Respondent dismissed the Claimant by reason of conduct or that the Claimant had been continuously employed for over 12 years by the time of his dismissal.[55]As noted above, the reason for dismissal was that the Claimant worked for other organisations whilst signed off sick and failed to formally declare those roles by way of a declaration of interest.[56]Conduct is a potentially fair reason for dismissal pursuant to section 98 of the ERA 1996. What was in issue was whether the decision to dismiss the Claimant was substantively and procedurally fair. Substantive Fairness[57]As this was a conduct dismissal, the following principles required determination, as follows: 57.1. Whether the Respondent genuinely believed that the Claimant had engaged in conduct for which he was dismissed; 57.2. Whether the Respondent held that belief on reasonable grounds; 57.3. Whether in forming that belief, the Respondent carried out proper and adequate investigations; and 57.4. Thereafter, whether the Claimant’s dismissal was a fair and proportionate sanction to the conclusions reached by the Respondent.[58]Given my findings, I was of the view that the Respondent did genuinely believe that the Claimant had engaged in the conduct for which he was dismissed. That arose from the Respondent’s own investigations and the evidence that the Claimant accepted that he had worked whilst signed off as unfit for work, had not made a formal declaration of those roles (relying rather on references to his other jobs in various emails he sent to managers in 2022 and 2023, when he was not off sick) and had not obtained written approval to undertake those roles[59]That genuine belief was reasonably held and arose from proper and adequate investigations. The investigation was appropriate, given the seriousness of the allegations that had been made and in light of the Claimant’s admission as to the conduct being investigated. The evidence was properly weighed and considered by the investigating officer and the disciplinary officer. In reality, there was no dispute about the conduct for which the Claimant was disciplined.[60]The Claimant worked whilst signed off sick. It was worth remembering that he was the one who went to his GP, received a fit note and submitted - 11 - that fit note to his employer. It was the Claimant who was telling his employer in various emails that he was not fit for work. At the same time, he was undertaking work of a similar nature for others.[61]In addition, the Respondent’s Code of Conduct was clear – employees were not permitted to work whilst off sick. Not only was it clear, it was also reasonable. If an employee was deemed unfit to work for the Respondent, it was unreasonable for them to engage in work for others at the same time. Not only might that impair their recovery, there was a far more fundamental issue at large – the Claimant had represented to the Respondent that he was unfit for work and then proceeded to work for others. There was an inherent issue of trust engaged. Employers are entitled to trust their employees that when they say that they are too ill to work, they mean it and that they will not thereafter work for others.[62]In my judgment, it was no answer to that for the Claimant to say, as he did in his closing submissions, that he did not agree with his GP or that he felt he was able to work on a phased return. In that case, he should not have sought and submitted the fit notes. What he cannot avoid was that he provided clear evidence to the Respondent that he was unfit to work, whilst at the same time working for others.[63]The Respondent was also entitled to conclude that working whilst signed off as unfit to work was an act of gross misconduct. It was a breach of the Employee Code of Conduct and also given as a clear example of what would be considered as gross misconduct.[64]The Claimant also failed to comply with his contractual obligation to formally declare his interest in those other posts under the Employee Code of Conduct.[65]I reminded myself that, even on the Claimant’s own case, he was provided with a copy of the Employee Code of Conduct on 20 April 2023 and was aware of its content at that time. He was therefore aware of the provisions detailed above. Despite that, and only a few weeks later, he proceeded to undertake work whilst signed off sick, in breach of the Employee Code of Conduct, and failed at any point to formally declare his other jobs.[66]Whatever the Claimant’s arguments about wanting to return to work or not agreeing with his GP’s opinion as to his fitness for work, his contract with the Respondent required his adherence to the Employee Code of Conduct. Within weeks of becoming aware of its contents (on his case), the Claimant breached its terms, including in a way which he was aware would be considered as an act of gross misconduct by the Respondent.[67]The Claimant’s mitigation that the work he was doing was limited, was less onerous and of minimal significance ignored the fundamental point. The Employee Code of Conduct, and by extension his contract with the Respondent, prohibited the Claimant from undertaking any work when - 12 - signed off sick. It did not distinguish between the type, degree or significance of the work.[68]Similarly, the Claimant’s argument that he had, at the time that he was working whilst signed off as unfit for work agreed a phased return to work with the Respondent and so decided he should begin undertaking his other work from mid-May 2023 failed to mitigate the same point. The Employee Code of Conduct was clear. The Claimant was not permitted to undertake any other work whilst off sick.[69]Finally, none of the Claimant’s mitigation explained why, even after he accepted he had received and read the Employee Code of Conduct, he did not comply with the requirement to formally declare his other employment.[70]In my judgment, having concluded that the Claimant worked for other employers whilst signed off as unfit from his job with the Respondent, and having failed to declare his interests in those other employers by way of a formal declaration, based upon a genuine belief, reasonably held and following a proper investigation, dismissal was within the range of reasonable responses available to the Respondent. That was so even allowing for the Claimant’s arguments on mitigation.[71]As such, the Claimant’s dismissal was substantively fair. Procedural Fairness[72]As found, there was an investigation by an independent officer. The Claimant was invited to meetings at the investigatory, disciplinary and appeal stages of the process. He was provided with all the relevant information and evidence in the Respondent’s possession. He was afforded the opportunity to present his own evidence and test the evidence obtained by the Respondent. He was made aware that dismissal was a possible sanction. He was given notice of the disciplinary and appeal hearings. Both hearings were chaired by officers not previously involved in the process[73]The Claimant complained that his brother had not been permitted to speak on his behalf at the disciplinary hearing. To the extent that was couched in terms of not allowing the Claimant’s trade union representative to advocate on his behalf, it was, for the reasons found above, misplaced. The Claimant’s brother did not attend the disciplinary hearing as the Claimant’s trade union representative. The Claimant was not member of any trade union, including the TGWU. Self-evidently, as he was not a member of trade union, no one from any trade union could be his trade union representative. In addition, the TGWU was not a union formally recognised by the Respondent.[74]The Claimant wanted his brother to attend and, coincidentally, his brother was a member of a trade union (which the Claimant was not a member of and which was not recognised by the Respondent). The - 13 - reality was that his brother attended as a family member and did not have the status of a work colleague or trade union representative.[75]To that extent, there was no breach of procedure by the Respondent. More importantly, there was nothing from the evidence to suggest that the Claimant was in any way prejudiced by that procedure. He was clearly able to present his case and engage in the disciplinary process, with his brother’s support (if not his brother’s advocacy).[76]The Claimant’s brother was permitted to speak on behalf of the Claimant at the appeal hearing but, as recorded above, the Claimant chose to present his case himself, supported by his brother.[77]There was nothing to suggest that the decisions reached were not the independent decisions of the officers who made them, based upon the evidence presented to them. There was clear evidence in their decision letters and their evidence to the Tribunal that the Claimant’s mitigation was considered. As found above, even allowing for that mitigation, dismissal remained within range of reasonable responses available to the Respondent.[78]The decision letters issued by Mr Dhaliwal and Mr Mackin were clear, cogent and properly reasoned. The Claimant could reasonably understand the basis for each decision and how the evidence had been weighed and considered. Whilst he undoubtedly disagreed with those conclusions, the procedure followed by the Respondent, from the initial investigation to the appeal hearing, was fair.[79]As the decision to dismiss was both substantively and procedurally fair, the claim of unfair dismissal was not made out and is dismissed. Analysis & Conclusions: Wrongful Dismissal[80]Section 86 of the ERA 1996 affords rights of notice to employees, the length of which is determined by their period of continuous employment with their employer. Any failure by the employer to give correct notice constitutes a breach of the employee’s contract of employment, save where either the employee waives his rights to, or accepts payments in lieu of, notice. In addition, an employer is entitled to dismiss an employee without notice where satisfied that the employee’s conduct amounted to a repudiatory breach of the employment contract and discloses a deliberate intent to disregard the essential requirements of that contract. The employer faced with such a breach by an employee can either affirm the contract and treat it as continuing or accept the repudiation, which results in immediate dismissal.[81]It was the Respondent’s case that the latter applied to the Claimant – that his conduct constituted a fundamental breach of his employment contract. As recorded above, I found that the Claimant worked for others whilst signed off sick, in clear breach of the Employee Code of Conduct which, on his own case, he had read only a few weeks earlier. He also - 14 - undertook work for others without formally declaring the other posts he had as required under his contract of employment.[82]The Claimant’s behaviour went to heart of the implied term of mutual trust and confidence between employer and employee. He told his employer that he was unfit to work for them as a tutor, whilst at the same time undertaking sufficiently similar work for others, when he knew that the same was specifically and clearly prohibited.[83]In my judgment, the Respondent was entitled to consider such behaviour to be gross misconduct and a fundamental breach of the Claimant’s employment contract. As such, the Respondent was entitled to dismiss the Claimant without notice and the claim for wrongful dismissal fails. Approved by: