Mr M Headley v London Fire and Emergency Planning Authority: 3201597/2017

EMPLOYMENT TRIBUNALS

Case No 3201597/2017

Between

Mr M HeadleyClaimant

London Fire and Emergency Planning AuthorityRespondent

Before

Employment Judge Moor

Mr M Shepherd (instructed by Counsel) for claimant

Miss L Suding (instructed by Counsel) for respondent

Date 4 October 2021

JUDGMENT

The judgment of the Employment Tribunal is that the Respondent’s application to strike out the claim and/or any parts of it is dismissed.

REASONS

Law

[1]The Claimant remains employed by the Respondent as a Fire Officer/Crew Manager. This claim arises out of a formal grievance he made in respect of an incident at work between himself and Station Manager Cook (“SM Cook”) on 13 April 2017. Put simply, the Claimant argues that the way in which his grievance about this incident and its appeal were handled was direct race discrimination and/or victimisation contrary to the Equality Act 2010.

[2]This afternoon, I clarified the issues in the case with the parties. The claim is adequately and clearly pleaded and both Respondent and Claimant have provided a draft list of issues. From these matters, and the oral submissions made by Mr Shepherd today, the issues appear to be as follows: Issues Section 13: Direct discrimination because of race

[3]Did the Respondents subject the Claimant to the following alleged detriment: 3.1. Not upholding the Claimant’s grievance. 3.2. Not upholding the Claimant’s grievance appeal. 3.3. Failing to carry out a reasonable investigation into the Claimant’s grievance and/or appeal by: 3.3.1. failing to inform witnesses that the investigation was confidential; 3.3.2. failing to inform witnesses of the importance of telling the truth; 3.3.3. failing to reassure witnesses that they would not be victimised as a result of giving evidence as a part of the grievance investigation. 3.4. Group Manager Powell (“GM Powell”), the manager who investigated the grievance, accepted SM Cook’s version of events at face value. 3.5. Failing to disclose witness statements obtained as part of the grievance investigation to the Claimant, contrary to the Respondent’s grievance procedure. 3.6. Failing to offer the Claimant the opportunity to consider mediation, contrary to the Respondent’s grievance procedure. 3.7. GM Powell, in the grievance outcome letter, accusing the Claimant of acting in bad faith when he submitted his grievance and failing to provide any evidence to support this assertion. 3.8. Failing to provide the witness statements obtained during the grievance investigation to the Claimant in response to his Subject Access Request.

[4]Did the Respondent treat the Claimant as alleged, less favourably than it treated or would have treated other comparators in not materially different circumstances? The Claimant relies on hypothetical comparators and SM Cook as a comparator in that his complaint about the incident of 13 April was more thoroughly investigated by virtue of the Respondent interviewing more witnesses.

[5]If so, are there facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of race? The Claimant identifies his race as being black Caribbean. The Claimant will argue that the following allegations show that, in his case, there was something more than detrimental and different treatment, which could enable the Tribunal to infer the reason for the alleged detriments was race. 5.1. The difference in race between himself and SM Cook and the different number of witnesses who were interviewed in respect of their complaints about the same incident: the Respondent interviewed 21 witnesses for SM Cook’s complaint whereas it interviewed 9 or 10 witnesses for the Claimant’s. 5.2. The Respondent’s failure to interview Mr Coleman who the Claimant had identified as being a relevant witness. 5.3. The Respondent’s failure to answer all of the questions included in a discrimination questionnaire sent to it. 5.4. The Respondent’s failures to follow its own procedures. 5.5. The acceptance of SM Cook’s account albeit that he had been described by a senior officer in the Respondent as “acting like a Nazi”. 5.6. The allegation of bad faith. I have included above these ‘something more’ matters referred to in Mr Shepherd’s oral submissions today. It is important to identify the alleged facts that the Claimant will rely on to invite the Tribunal to infer that the detriments and different treatment he experienced were on grounds of race. These are not set out in his written claim but are relevant to my consideration of the Respondent’s application to strike out the claim and I therefore set them out here for completeness.

[6]If so, what is the Respondent’s explanation? Does it prove a non-discriminatory reason for any proven treatment? The Respondent will say it had reasonable grounds for preferring SM Cook’s account that were nothing whatsoever to do with race. Section 27: Victimisation

[7]Did the Claimant do a protected act and/or did the Respondent believe that the Claimant had done or might do a protected act? The Claimant relies upon his making of a formal grievance on 24 April 2017 concerning SM Cook’s conduct, which he contended was because of race. (Currently, the Respondent does not admit this to be a protected act.)

[8]Did the Respondent subject the Claimant to the detriments set out above?

Findings of fact

[9]If so, was this because the Claimant did a protected act and/or because the Respondent believed the Claimant had done or might do a protected act? Time limits/Jurisdiction

[10]Have any of the claims been presented outside the statutory time limits set out in Section 123 of the Equality Act 2010? Dealing with this issue may involve consideration of the following subsidiary issues:- 10.1. Whether there was an act and/or conduct extending over a period and/or a series of serious acts or failures; and 10.2. Whether time should be extended on a just and equitable basis. Remedy

[11]If the Claimant succeeds in whole or part, the Tribunal will be concerned with issues of remedy and in particular if the Claimant is to be awarded compensation. Other Procedural Matters

[12]The Claimant indicated he is likely to present a further claim in respect of further alleged detriments concerning the same issue and it was therefore agreed by both parties that it was appropriate to vacate the date listed for the full hearing of this claim.

[13]I also indicated the Tribunal will stay the Case Management Orders in respect of this claim, until 27 April 2018 when the file will be brought forward for the listing of a further Preliminary Hearing and consideration given, at that stage, if a second claim has been presented, for the two claims to be heard together.

[14]Due to an administrative error the typed copy of her decision was not forwarded to the Employment Judge for her approval promptly and the Tribunal apologises to the parties, therefore, for the time it has taken for them to receive this written judgement and Case Management Orders. Fortunately, because of the stay on proceedings, this has not unduly delayed the progression of the claim. Respondent’s Application to Strike Out

[15]The Respondent has made an application for an order to strike out the Claimant’s claim in its entirety.

[16]I heard helpful submissions from both counsel and was referred to some of the contemporaneous documents. I will refer to the Respondent’s bundle as R and the Claimant’s bundles as C. Respondent’s Submissions

[17]Miss Suding argued that the claims for direct race discrimination and victimisation lay merely at the level of assertion. She contended that the Claimant had not identified any link to race nor to the alleged protected act.

[18]She submitted he had to show something more than unreasonable or unfair conduct by the Respondent in order to establish any reasonable prospect of success in his discrimination claims and that he had not done so.

[19]She suggested that what had really happened here was that the Claimant had conflated his complaint of race discrimination about SM Cook with the way in which the Respondent had dealt with those complaints in his grievance and its appeal.

[20]In relation to the particular detriments alleged, she made the following forensic points in order to argue in relation to each claim and overall that it had no reasonable prospect of success, namely that: 20.1. in his appeal against the grievance, the Claimant did not complain that the grievance outcome itself was an aspect of race discrimination or victimisation; 20.2. his initial grievance did not contain sufficient conduct to amount to an allegation of bullying because of race, because the Claimant referred to his allegation coming from his ‘gut feeling’ and, on his own account, SM Cook had shouted at him to remove his FBU badge which was not related to his race. Nor was there any allegation that SM Cook’s language was race specific; 20.3. of the 10 witnesses interviewed nobody supported the Claimant’s assertion of events and it was therefore unsurprising that his grievance was not upheld; 20.4. during the appeal, the Claimant had agreed to withdraw his complaint that he had not been provided with copies of witness statements; 20.5. she disputed the allegation that no ‘weighting’ was provided by the decision maker by reference to the outcome letter as stating it was given on the ‘balance of probabilities’; 20.6. she contended that GM Powell’s question as to the motivation for the grievance was explained by the fact that it was chronologically and factually correct because the Claimant had only made his complaint after hearing that SM Cook had also made a complaint; 20.7. she contended that there was an extensive investigation involving 10 witnesses, four of whom were put forward by the Claimant, and at meeting with the Claimant at which he was accompanied; 20.8. she referred me to interview notes of witnesses in which the preface stated that interviewees had been informed of their obligation to tell the truth, reassured they would not be victimised and reminded that the interview was confidential. She argued therefore that the facts of this alleged detriment were wholly inconsistent with contemporary documents; 20.9. she contended that the grievance procedure did not provide for the disclosure of witness statements or an offer of mediation services; 20.10. she argued that the witness statements were exempt from disclosure under the Subject Access Request under the relevant legislation until the disciplinary investigation into the Claimant’s conduct had been concluded. And, even if that were wrong legally, that was the Respondent’s reason for taking such action and therefore was not connected to race or the protected act; 20.11. Miss Suding contended that therefore the Claimant’s case was inconsistent with contemporaneous documents in particular, the interview notes, the grounds of appeal, the grievance procedure and the outcome letter.

[21]She invited the Tribunal therefore to strike out the claim and/or order the Claimant to pay a deposit of £1000.

[22]Miss Suding did not pursue in oral submissions the arguments set out in the written application that the claim was scandalous or vexatious. It should be noted that the Respondent has alleged that the claim is to ‘vilify’ the Respondent and its employees and subject the Respondent to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the Claimant. Claimant’s Submissions

[23]Mr Shepherd made oral submissions by reference to a detailed note to which I refer. Law

[24]Rule 37(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 provides that a Tribunal can strike out all or part of a claim on the grounds that it has “no reasonable prospect of success”. This threshold is a high one.

[25]If the facts alleged by the Claimant disclosure no arguable case in law, then it would be appropriate to strike out his case on that ground. Where that is not the case and in a discrimination claim where facts or the interpretation of them are in dispute, the guidance of the higher courts is that it would only be in an exceptional case that strike out is appropriate, see eg Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ. 330

[26]In discrimination cases particular concerns arise in attempting to consider the merits of a case prior to a hearing at which the evidence can be tested. The process is fact sensitive and often subtle. The correct approach is set out by Wilkie J in Sharma v New College Nottingham UK

EAT/0287/11

(paragraphs 18-20). It is well established that it is important to bear in mind, in deciding whether a Claimant has proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of unlawful discrimination against the Claimant, that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be intentional, but maybe based on an assumption. In deciding whether the Claimant has proved such facts, the Tribunal will usually consider what inferences it is proper to draw from the primary facts found by it. In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts. This approach to the first stage in the process of determining whether or not there is a sufficient case to pass the burden of proof to the Respondent is well established it is contained in the annexe to the Court of Appeal decision in Igen v Wong

[2005] EWCA Civ. 142

[27]Discrimination cases and strike out were considered by the House of Lords in the case of Anyanwu v South Bank Students Union & Others [2001] UKHL14

[2001] ICR 391

in which Lord Hope said, at paragraph 37: I would have been reluctant to strike out these claims on the view that discrimination issues of the kinds which have been raised in this case should as a general rule be decided only after hearing the evidence. Questions of law that are to be determined are often fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The Tribunal can then base its decisions on its findings of fact, rather than on assumptions, as to what the Claimant may be able to establish if given an opportunity to lead evidence.

[28]Furthermore, Lord Steyn made the now well-known remark that in pluralistic society it is important to decide discrimination cases after a full examination of the facts. In this field, perhaps more than any other, the bias in favour of the claim being examined or the merits or demerits of its particular facts is a matter of high public importance.

[29]Nevertheless, it is open to the Tribunal to strike out a discrimination claim if, on the facts alleged by the Claimant, it discloses no claim in law or it is a plain and obvious case where there is no reasonable prospect of success. This is because it is not in accordance with public policy for Tribunal time to be taken up by hearing cases on the evidence that are bound to fail. Where a claim is ‘conclusively disproved by’ or is ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, then that might provide grounds for arguing that it has no reasonable prospect of success. Miss Suding, being well aware of this guidance to the Tribunal, sensibly confined her submissions to considering the Claimant’s claim at its highest and also confined her submissions on strike out to the question whether it had no reasonable prospect of success.

[30]Mr Shepherd relied on Sharma (above), to contend that it is not be possible to strike out a discrimination allegation even where contemporary documents were inconsistent with it. I do not consider Sharma goes that far or establishes such a principle. In Sharma the Tribunal had made a deposit order because contemporary minutes of a meeting did not appear to support the Claimant’s case that he had been bullied. The EAT held, given the discrimination test and the appellate guidance and the extent of the disputed facts in the case, that it was insufficient of the Tribunal to decide that merely because the minutes did not support the Claimant’s case, it had little prospect of success. This case does not mean that in an appropriate case where contemporary documentation does not support a particular issue, that the Tribunal cannot take the view that the issue has no or little reasonable prospect of success. Each case will very much turn on its own facts. Thus, for example, in Ahir v British Airways plc

UKEAT/0014/16/RN

HHJ Eady QC upheld a Tribunal’s decision to strike out claims as having no reasonable prospect of success. The reason for dismissal was disputed. The Claimant had lied on his application form but maintained the employer already knew this and had fabricated an anonymous letter allegedly disclosing this fact shortly after he had lost another discrimination claim in the Tribunal. The EAT held that the Tribunal was entitled to decide that the Claimant was putting forward an essentially implausible case, founded upon a baseless assertion that it was entitled to reject outright. It was undisputed that the anonymous letter had been considered by six separate managers, each of whom separately took the view that it warranted disciplinary action.

[31]In Ahir the EAT cautioned that, where claims appear weak on their face, there can be a temptation to take a short cut and determine the case summarily. When the claim represents a genuine grievance on the part of the complainant such a step is unlikely to provide a real short cut as the number of appeals against strike out decisions makes clear. The Tribunal should bear in mind that testing evidence at a hearing can often confound expectations and prove false earlier assumptions about the merits of the case. Application of Law to

Issues

[32]I am not persuaded that this claim has no reasonable prospect of success. Miss Suding came close at points in her submissions, to requiring each allegation to raise an express link on the evidence with race in order to disclose an arguable case. That would be virtually impossible in many race discrimination claims and seems to me to disclose a misunderstanding of the approach required to be taken in discrimination claims as summarised by Wilkie J above. Such claims often depend upon the Tribunal drawing inferences from facts that might appear at first to be relatively minor.

[33]In this case, the Claimant has identified a series of alleged detriments in the way his grievance and associated appeal were handled and decided. He argues that individually and overall these detriments amount to unfavourable and different treatment from a hypothetical comparator i.e. an employee who was not black Caribbean. In essence his claim is: ‘Had I been white or not black Caribbean my grievance and appeal would not have been determined in the same detrimental way’ or ‘Had I not raised a race discrimination complaint then ditto’.

[34]First, it seems to me that it cannot be said there is no arguable case that each of the alleged detriments may amount to one if established on the facts. To find a detriment the Tribunal ‘must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work’, Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL (para 34). 34.1. Plainly, the failure to uphold the grievance and appeal might fall into this category: the Claimant had a complaint about his manager. He could reasonably take the view that the failure to uphold this complaint was likely to create problems for him at work in the future, That the Claimant did not pursue a race discrimination allegation during his appeal does not render the claim unarguable: there can be all sorts of strategic and personal reasons why a Claimant does not raise an allegation of discrimination at the first possible moment. 34.2. Likewise the procedural matters complained of are also arguably detriments: not having had the matter investigated adequately or taking other statements at face value; not providing the Claimant with witness statements; not providing an opportunity for mediation; and not reassuring witnesses. These are all matters that a reasonable employee might regard himself disadvantaged by. The fact that the complaint about witness statements was withdrawn at the appeal stage does not render it hopeless at the Tribunal: again, the Claimant may have had good strategic or personal reasons for not doing so.

[35]Second, whether the Claimant was subject to the detriments can only be determined after hearing the disputed facts. The Respondent has not persuaded me that there are any undisputed facts or documents wholly inconsistent with the Claimant’s case. In particular: 35.1. that SM Cook’s version of events was taken at face value is an allegation that can only really be tested upon hearing the evidence of the decision maker. The assertion in the outcome letter that he decided the matter on ‘balance of probabilities’ is disputed. 35.2. The Respondent argues that the witness statements now provided are a complete answer to issues 3.3.1-3.3.3. But the Claimant questions the reliability of those statements. It is said by the Respondent that they were taken during the course of the investigation but he points out that they are neither dated nor signed, in contrast to his own. He also points to the fact that they have been denied him until he brought this claim. The reliability of those witness statements will therefore need to be assessed in evidence at a full hearing. It would be wrong of me to draw conclusions about the circumstances of their creation before that occurs. 35.3. As to non-disclosure of witness statements obtained during the grievance investigation. I have been shown paragraph 15 of the Respondent’s grievance procedure (R49) which provides that: ‘copies of meeting records should be given to the employee including any formal minutes which may have been taken. In certain circumstances for example, to protect a witness, some information may be withheld.’ It appears to me clear therefore that the Claimant has an arguable case that he ought to have received copies of the interviews with witnesses who were investigated during the grievance procedure. 35.4. The Respondent argues that its procedure did not give an employee the opportunity of requesting mediation and this alleged detriment has therefore no basis in fact. Mr Shepherd took me to paragraph 1 of the grievance procedure at R47 in support of the allegation. It records ‘employees should aim to resolve most grievances quickly and informally by discussing them with their line manager… .’ The reference to ‘informally’ might arguably be a reference to mediation. There is also paragraph 4 of the grievance procedure that records ‘the employee will be given a full opportunity to explain their complaint and say how they think it should be settled’. This may form the procedural basis of the Claimant’s complaint. For these reasons, I do not consider that this complaint has no prospect of success as an alleged detriment.

[36]Nor can it be said that the Claimant has no prospect of establishing that he was subject to a detriment by being accused of bad faith in submitting the grievance. There are arguments on both sides here. 36.1. In the outcome letter, GM Powell informed the Claimant: I understand you only raised your complaints after you became aware that a management investigation had commenced as a result of your own behaviour. In view of this, and given your claims were not supported by any evidence, I am led to question your motivation in raising your complaint and it appears that your complaint may be designed to frustrate the management investigation. 36.2. This is arguably an allegation of bad faith and may either be for the reason GM Powell set out (the coincidence in timing of the Claimant’s grievance after SM Cook’s complaint) or it might be because he had done a protected act or, depending upon the facts, it might not have been something SM Powell would have gone on to say had the Claimant been white. The matter will have to be determined after a full hearing.

[37]The final alleged detriment, failing to provide witness statements in response to the Subject Access Request, is also reasonably arguable as a detriment especially given the requirement of the Respondent’s own policy to provide meeting records as set out above. The parties dispute the legal correctness of the denial. Miss Suding’s assertion that it was its view of the law (right or wrong) and not the Claimant’s protected characteristic or protected act that caused the Respondent not to disclose is a matter that will have to be tested in the evidence.

[38]Third, it seems to me the matters the Claimant has set out in order to persuade the Tribunal to draw an inference of race discrimination are sufficient to establish a claim. It cannot be said that the claim lies merely at the level of assertion. The ‘somethings more’ set out in the issues are not so inconsequential as to make the case unarguable. Taken together they could allow an inference of race discrimination. In particular the following matters, if proved, might be said to be surprising and without explanation could lead to an inference that race or the alleged protected act were the reasons for the detriments in the absence of an adequate explanation for them: 38.1. the allegation that the Respondent failed to speak with a witness the Claimant had referred to, Mr Coleman; 38.2. that GM Powell did not ask appropriate probing questions in particular, whether the interaction between the Claimant and SM Cook was because of the Claimant’s race; 38.3. that the Respondent allegedly interviewed 21 witnesses in respect of SM Cook’s complaint about the same incident whereas they allegedly interviewed only 9 or 10 witnesses in respect of the Claimant’s complaint about the same incident. The Claimant’s allegation that there was a more thorough investigation in relation to SM Cook’s complaint than his own has at least some factual basis. It could be open to a Tribunal to find this difference surprising and, given their difference in race (I was told that SM Cook is of mixed racial heritage), a Tribunal could decide that in the absence of any explanation that race was the reason.

[39]Finally, it is plainly arguable that the Claimant made a protected act as set out in the issues. As I have found that it is arguable that there were detriments, then the reason for them can only be determined at a hearing: is it because of the protected act or because of the Respondent’s explanation? For the reasons I set out above, there is nothing in the contemporaneous documents or undisputed facts which enables me to decide this question obviously in the Respondent’s favour at this stage.

[40]For all of these reasons, I am not persuaded that either the direct discrimination or victimisation claims have no reasonable prospects of success. I decline to strike them out.

[41]I have made the case management orders set out in a separate document, by consent.

Remedy

[1]The Claimant brought three cases: 1.1. Case No. 3201597/2017 was presented on 24 November 2017, after an ACAS early conciliation period between 11 and 26 October 2017 (‘Case 1’). 1.2. Case No. 3200756/2018 was presented on 9 April 2018, after an ACAS early conciliation period between 26 February and 13 March 2018 (‘Case 2’). 1.3. Case No. 3200312/2019 was presented on 6 February 2019, after an ACAS early conciliation period between 31 December 2018 and 15 January 2019 (‘Case 3’).

[2]Cases 1 and 2 were brought while the Claimant was still in the Respondent’s employment. Case 3 was brought after the employment was terminated and contains a claim of unfair dismissal. The first two claims were consolidated in May 2018, the third in May 2019.

[3]The first hearing, listed to be heard in January/February 2019, was postponed because the Claimant was unwell and because he intended to issue a third claim. The second hearing, which was listed in April/May 2021, was postponed because of the Covid-19 pandemic.

[4]A deposit order was made by EJ Moor at a hearing on 27 March 2018 in respect of one factual allegation, pursued as both direct race discrimination and victimisation. At the same hearing, the Judge refused the Respondent’s application for a strike-out of these and other claims.

[5]Although this hearing was originally listed to deal with all three cases, the Respondent’s main witness in Case 3 (Ms Philpott, who took the decision to dismiss) was unable to attend because of illness. EJ Jones ordered that Case 3 be heard separately. She considered it vital that Cases 1 and 2 proceed, given that they relate to events in 2017/2018. Case 3 will be heard over three days in November 2021. The hearing

[6]We had an agreed bundle running to some 1250 pages. We heard evidence from: 6.1. the Claimant; for the Respondent, we heard from: 6.2. Mr Rhys Powell (Group Manager at the time; Deputy Assistant Commissioner since July 2017); 6.3. Mr Wayne Brown (Deputy Assistant Commissioner for Operational Policy at the London Fire Brigade headquarters); 6.4. Mr Nicol McCallum (Station Manager); 6.5. Mr Jamie Jenkins (Group Manager, Borough Commander for the Waltham Forest Borough at the material time); 6.6. Ms Catherine Gibbs (Senior HR Adviser (Discipline & Grievance) at the time); and Mr James Sivell (Information Access Manager at the time).

[7]We also had a statement from Mr Allen Perez (Deputy Assistant Commissioner for the North-east London area). He could not attend the hearing for health reasons.

[8]We had helpful written submissions from both advocates, which they supplemented orally. We do not summarise them in what is already a long judgment; we are grateful to them both for their assistance. Findings of fact

[9]The Claimant successfully completed his training as a fire officer in August 1989. He spent twelve years at Westminster Fire Station on Red Watch. He was the first Black fireman on this watch. The Claimant’s evidence was that, while at Westminster, he was present at (but not the target of) two incidents of racism.

[10]He transferred to Leyton fire station, where he remained for seven years and was promoted to Crew Manager (‘CM’). He also completed the training which enabled him to act up as a temporary Watch Manager (‘WM’) at any fire station. Because of this additional qualification, his rank was referred to as ‘CM+’, the additional duties as the ‘plus role’. It attracted an additional payment of £1000 per annum.

[11]The Claimant moved to Bethnal Green in 2006, where he spent eight years. In 2016 he moved to Walthamstow, as Crew Manager, where he had hoped to finish his career in April 2019. The Claimant reported to SM McCallum, who reported to Group Manager (‘GM’) Jenkins.

[12]By 2016, the Claimant no longer wanted to carry out the plus role and he asked to be relieved of it, partly because he disliked not knowing from one day to the next which station he would be sent to. The Respondent refused because they lacked the resources to replace him. At the grievance meeting on 1 June 2017, the Claimant’s trade union representative renewed the request. SM Cook’s complaint on 13 April 2017

[13]The trigger for Cases 1 and 2 was an incident on 13 April 2017. On that day the Claimant was assigned to Bethnal Green station to stand in for a WM who was on annual leave. One function of a WM is to organise fire exercises, to give officers the opportunity to practice skills and techniques, including assessing situations and searching and finding. A four-pump fire drill (a training exercise, when four fire engines, or appliances, are present), was scheduled to take place at Royal Mint Court in East London. The Claimant was assigned as officer in charge (‘OIC’) of the drill.

[14]During that exercise, there was an altercation between the Claimant and SM Shane Cook, who was observing the drill. SM Cook was senior to the Claimant. Each alleged that the other had behaved in an aggressive and confrontational manner. We record at this point that SM Cook is of dual heritage (White British/Indian).

[15]Later the same day SM Cook complained about the Claimant’s behaviour to the Borough Commander (who was also the Claimant’s Station Manager), GM Jenkins. SM Cook’s account of the incident was as follows.

[16]He noticed that the Claimant was wearing a Fire Brigades Union (FBU) badge on his tunic. He took him aside and asked him to remove it because it was not part of his uniform. The Claimant removed it but asked why firefighters were allowed to wear Union Jack badges. SM Cook asked him to point out anyone who was wearing a Union Jack badge, which the Claimant declined to do. SM Cook asked the Claimant why he had ordered firefighters to set up the dry riser before the drill and observed that this should not be done until the drill started. The Claimant’s response (which SM Cook could not recall) caused SM Cook to take him aside and ask him whether he had a problem with what he was saying. According to SM Cook, the Claimant told him in a confrontational manner that he had been ‘stitched up’ by being put in charge of the exercise. SM Cook then asked the Claimant why he had taken the CM+ role, knowing that he could be in charge of exercises. The Claimant replied: ‘who did I think I was, the Commissioner?’ The Claimant then walked away from SM Cook, saying that he had a headache and was going to sit on the appliance for ten minutes. SM Cook told him that if he was unwell, he would place him on sick leave. The Claimant objected. SM Cook told him that he was not going to delay the drill for ten minutes to see if the Claimant would be able to take part. SM Cook twice asked the Claimant what station he was from, but the Claimant refused to tell him and walked away from him. SM Cook asked SM Coleman to take the Claimant back to Bethnal Green, so that he could go home. They went to find the Claimant. SM Cook asked the Claimant whether he still felt unwell, but he refused to answer any questions from him unless he had a witness. The Claimant then told SM Coleman that SM Cook could not place him on sick leave; SM Coleman told the Claimant that was wrong.

[17]SM Cook wrote as follows:1 ‘I felt Marcus was being very confrontational, disrespectful and aggressive throughout our conversation. I have concerns that Marcus felt he was being stitched up by taking command of this exercise. Being a T/WM [in] this exercise could have greatly help[ed] Marcus take charge of a highrise incident. I feel that further development is required for Marcus to undertake the role of CM. In light of his actions today I have several concerns over today[‘s] incident the main one being his refusal to answer questions from the senior officer.’

[18]On 13 April 2017, CM Norris, who was also present at the drill, provided a written account of the incident. According to CM Norris, the Claimant felt uncomfortable being OIC of the drill, because it had been over a year since he had been in charge at fire. The Claimant asked him to take over some of the tasks, which he agreed to do. CM Norris then went up to the fourth floor of the building, so he did not observe the altercation between the Claimant and SM Cook. When he came down, SM Cook told him that the Claimant was sitting on an appliance, complaining of a headache. SM Cook asked him to appoint a new OIC, which 1 minor amendments for sense shown in square brackets, otherwise original spelling/grammar retained in all extracts from contemporaneous documents he did. The drill then began. CM Norris later (on 30 April 2017) forwarded his statement to SM McCallum, along with that of Firefighter (‘FF’) Holmes.

[19]SM Cook’s complaint was forwarded to Deputy Assistant Commissioner (DAC) Perez on 14 April 2017, who authorised a local management investigation (LMI) into the incident. GM Jenkins instructed SM McCallum and SM Digby to carry it out.

[20]The Respondent’s policy ‘Local Management Investigation - Guidance for Managers’ provides that the primary purpose of an LMI is to gather information, in order to decide what, if any, further management action is required. Under that policy individuals are not entitled to representation at the LMI stage. If, on review, it is considered that action at Stage 1 of the disciplinary procedure is appropriate, the matter is referred back to local management. If there is the possibility of action at Stages 2 or 3 of the disciplinary procedure, the matter is referred to the Authority Discipline Manager, at which point a formal disciplinary investigation is undertaken by an HR adviser.

[21]We find that, once SM Cook had made what was, on its face, a complaint about the Claimant which raised significant concerns, it was inevitable that an investigation of some sort would take place.

[22]On 14 April 2017 the Claimant became aware that he had been relieved of his CM+ duties. That decision was taken at the request of SM Cook; it was authorised by GM Jenkins.

[23]The Claimant contacted colleagues, who were present at the drill, and who he thought may have witnessed the incident, to ask them to provide supporting statements but he received no responses. He did not tell his managers that he was doing this.

[24]On 15 April 2017, FF Holmes gave his account of the Claimant’s conduct, which included the following: ‘As the drill was beginning, SM Cook approached a group of us which included CM Headley, FF Beecham and CM Bass. SM Cook asked why we were getting the dry riser ready before the drill had officially commenced and he suggested to CM Headley that the drill should run as if it were a real incident in real time rather than getting things prepared first. CM Headley did not answer SM Cook and after SM Cook asked for a response several times, CM Headley walked away and was then followed by SM Cook. The conversation that then followed between the two individuals was away from myself and I did not hear what was said.’ The meeting of 20 April 2017

[25]The Claimant was interviewed on 20 April 2017 by SM Digby about the events of 13 April 2017. SM McCallum attended as notetaker.

[26]The Claimant said that he was given no forewarning of the meeting. There was no requirement for forewarning: there is nothing unusual in an employer seeking to elicit an unguarded account of events from an employee, about whom concerns have been raised, nor is there an entitlement to representation at a preliminary investigation meeting.

[27]The Claimant also said that he was told that there were two purposes to the meeting: fact-finding and welfare. He said that it was only when he was required to sign the statement that he noticed that the document referred to a management investigation. We do not accept that evidence. The notes record SM Digby explaining to the Claimant at the beginning of the meeting that it was part of a management investigation, following a complaint made by SM Cook; the purpose was to ask him questions in order to determine whether a formal investigation was required. The notes record the Claimant being asked whether he understood SM Digby’s explanation of the interview (he answered ‘Yes I do’) and whether he had any questions before SM Digby proceeded (he answered ‘No’). The Claimant made some handwritten amendments before countersigning the notes; he did not amend the record of what he was told the beginning of the hearing. We are satisfied that it is an accurate record.

[28]At the interview, the Claimant agreed that he was wearing a FBU badge, and that he was aware of the policy regarding the wearing of badges on uniforms. He did not recall being asked by SM Cook what station he was from but insisted that he had answered all the questions SM Cook asked him, including questions about his well-being. Later in the process (para 48 below), and indeed in his evidence to the Tribunal (paras 54-59), the Claimant accepted that he walked away from SM Cook, and that he refused to answer some of his questions. That is also consistent with the evidence of SM Coleman (para 39). In that respect his answers at the initial interview were not truthful.

[29]In response to the suggestion that he had been disrespectful and aggressive towards SM Cook, the Claimant asserted that SM Cook had been aggressive and confrontational towards him. This was the first time the Claimant raised SM Cook’s behaviour towards him with senior officers. He said that SM Cook had said to him: ‘if you don’t like the rank, then jack it in’. He denied ignoring or walking away from SM Cook at any point. He said that he had turned away and asked if they could talk privately. According to the Claimant’s account at this meeting, SM Cook then told him not to turn away and threatened him, saying: ‘turn away again and see what happens’. He said that he was shocked by how he had been spoken to by SM Cook. The Claimant’s first grievance

[30]On 24 April 2017, the Claimant lodged a formal grievance, which he sent to DAC Allen Perez. In it he alleged that SM Cook had displayed ‘aggressive and bullying conduct’, and that this conduct was ‘because of my race (Black) and therefore constituted unlawful discrimination in accordance with the provisions of s.13 and s.26 EQA 2010’. He did not explain why he thought that race was a factor at this stage.

[31]Because he received an out-of-office reply, he forwarded the email to DAC Perez’s line manager, Assistant Commissioner (‘AC’) George. He also copied in Commissioner Cotton, the HR advisor and the Respondent’s equality team. He explained that he wanted them to know that he was complaining of race discrimination; he did not want his grievance to get lost in the system.

[32]AC George replied immediately, stating that the grievance would be referred to GM Jenkins. The Claimant replied, expressing concern about involving GM Jenkins, given his role in the suspension of his plus duties.

[33]On 25 April 2017, Ms Sara Matthews of HR wrote to GM Jenkins, asking for further information. Later the same day, Mr Jenkins forwarded her email to SM McCallum.

[34]While the Claimant’s grievance - and subsequent grievances and appeals - were being dealt with, no further action was taken in relation to the LMI, other than the taking of statements from officers. The provision of statements to the LMI

[35]On 26 April 2017, Mr Jenkins provided SM McCallum with a list of the appliances present at the drill. On 28 April 2017, SM McCallum wrote to the watch managers of the relevant fire stations, asking for statements (known as ‘F10 statements’) from officers who were present.

[36]The Claimant is critical of the delay in seeking these statements. He maintains that the approach was triggered by his complaint of race discrimination. We reject that suggestion: we find that the steps were a natural extension of the process; they would have happened whether or not he raised a grievance, given the answers the Claimant gave at the interview. There were disputes of fact as to what had happened on 13 April 2017. The only way of resolving them was to secure further evidence, which is what the Respondent did. We do not consider that the six-day delay between the interview and the actioning of gathering further evidence is significant, particularly as it included a weekend.

[37]On 17 May 2017 GM Jenkins chased the outstanding statements from officers present at the drill on 13 April 2017. The following accounts were provided between 29 April and 22 May 2017. 37.1. FF Wildeman saw the Claimant walk towards the appliance and sit on the back of it; he later heard that there been some kind of altercation/disagreement, but did not witness it; he stated that at some point in the exercise SM Cook had approached him and asked him to check if the Claimant was okay, and whether he needed any water; the Claimant said that he was ‘somewhat distressed but required nothing’. 37.2. CM Bass witnessed SM Cook asking the Claimant why the crews had started, saying that he wanted the drill to run in real time, as if they just arrived at the incident. He asked the Claimant to stop them. The Claimant did not act on this straight away; SM Cook asked him politely if he could speak to him alone. They went to one side; CM Bass did not know what was said between them. 37.3. WM Beers described being told that the Claimant was ill but did not witness any inappropriate behaviour or conduct between the two men. 37.4. FFs Shepherd, Tuohy and Whitefield stated that they had not witnessed any inappropriate behaviour or conduct. FF Hopson, WM Lawes and WM Horrigan stated that they did not witness the exchange but were aware that something had occurred. FFs Prior, Green, Cawley, Ford, Maclean and Attfield had nothing of substance to report.

[38]On 2 May 2017, GM Paul Trew conducted an interview with SM Coleman, who witnessed some of the altercation between the Claimant and SM Cook.

[39]SM Coleman, who is Black, only witnessed the discussion at the back of the appliance. He said that the Claimant refused to speak to SM Cook and did not respond to questions from him, but did answer questions which he, SM Coleman, asked him. He stated that the Claimant said that SM Cook was confronting him and being aggressive. SM Cook said: ‘if you’re going to step up to the plate and take the money then you should be expected to fulfil your duty as an officer’. SM Coleman described the Claimant as agitated, and ‘shaking with frustration’. SM Coleman did not consider that SM Cook was being unreasonable and did not witness him being aggressive or confrontational. He confirmed that he took the Claimant away from the scene, as he had been asked to do by SM Cook. In the car, the Claimant said that SM Cook was aggressive and rude to him. The following evidence was recorded in the notes of the interview: ‘Q: Did CM+ Headley say anything to you while being removed to Bethnal Green fire station? A: Yes, before he began to speak, I told him that anything he says to me I would be duty bound to relay if investigated. Mr Hedley said I understand [but] it’s just that he (I assume he was talking about SM Cook) was aggressive and rude to me and I wasn’t going to let him talk to me like that. I then said to him that it was a pretty tense situation and he said he had previously been off with stress to which I said with all due respect maybe acting up isn’t for you if this induces your stress levels but that is not for me to say. Q: During your time in the car did CM+ Headley appeared to be suffering with his stomach-ache and headache? A: No, because whilst talking to him on the back of the appliance at the training venue I repeated SM Cook’s question of whether or not Mr Headley was sick to which he said “No I just need to be removed from this environment and him”. […] Q: Do you have anything else to say in relation to this investigation? A: Mr Headley seemed very distressed upon my arrival and SM Cook had not acted out of the normalcy required of a Station Manager in my opinion, whilst I was present on [the] scene.’

[40]The Claimant challenged the accuracy of the statement, without identifying specific inaccuracies. We have no reason to doubt its truthfulness: it struck us as detailed and nuanced; we noted the scrupulousness with which SM Coleman warned the Claimant that what he said might be referred to in any subsequent investigation; moreover, in cross-examination of the Respondent’s witnesses, Mr Panton (the Claimant’s solicitor) relied on elements of the statement, which he regarded as helpful to the Claimant, such as the fact that Mr Coleman confirmed that the Claimant had told him that SM Cook used the phrase ‘jack it in’. However, that in itself adds little to the overall picture. There was no real dispute that SM Cook questioned why the Claimant had accepted the plus role, if he did not want the responsibility; the only dispute was about whether he used that expression, which, in our view, can hardly be characterised as so offensive as to amount to bullying. Arrangements for dealing with the Claimant’s grievance

[41]DAC Perez asked GM Powell to hear the Claimant’s grievance. On 8 May 2017, GM Powell invited the Claimant to a meeting on 10 May 2017. At the Claimant’s request, the hearing was postponed twice, the first time to give the Claimant more time to prepare, the second because his union representative was not available. It eventually took place on 1 June 2017.

[42]On 21 May 2017, the Claimant wrote to SM McCallum, telling him that he had submitted a grievance, and referring to the general email SM McCallum had sent to officers asking for their accounts of the events; he asked to be provided with the responses.

[43]SM McCallum replied on 23 May 2017, stating that the LMI began before the grievance was submitted, and was independent of it. He declined to disclose the statements for two reasons: the possibility that the LMI could be prejudiced; and the fact that the responses would contain the personal information of others. He explained that the Claimant could make a subject access request (‘SAR’) and he provided the contact details of the Information Access team.

[44]On 24 May 2017 GM Jenkins provided DAC Perez with his final version of the LMI, which consisted of SM Cook’s original complaint, the notes of the interviews with the Claimant and SM Coleman, the memo prepared by C.M. Norris, and all the written statements provided by the other officers. Although the covering letter referred to containing signed copies of the statements, they were unsigned. The section in the report for analysis and conclusions was left blank. The Claimant’s written account of the incident on 13 April 2017

[45]In an email of 29 May 2017 sent to GM Powell, the Claimant set out his recollection of the incident on 13 April 2017. He also attached a statement from his wife.

[46]The Claimant wrote that, on 12 April 2017, he was notified that he had been assigned to Bethnal Green fire station the next day. He was concerned that he had not been given enough information to prepare for the drill and familiarise himself with the building layout. He thought either CM Norris or CM Bass should take charge of the drill. They told him they already had roles.

[47]He complained that SM Cook interrupted him when he was briefing the crew. SM Cook asked him to remove his FBU badge. The Claimant asked why some officers were wearing Union Jacks, although none were present that day. The Claimant continued to give instructions to other officers. SM Cook approached him and asked why he was doing so before the drill had started. SM Cook then took him to one side and asked him what his problem was, and whether it was because he had asked him to take off his FBU badge. The Claimant said he had forgotten all about it, but SM Cook said: ‘no you haven’t, you’re giving it the “bigun”’. SM Cook asked him whether he went out as Watch Manager at other stations. The discussion continued: ‘I said “can I stop you right there, I know what you are going to say” I said “you are going to say that because I’m in charge I will come into incidents like this”. He then replied “I wasn’t going to say that so don’t interrupt me”. He then went on to say “if you don’t like the rank then jack it in.” I said “excuse me!” He then repeated “if you don’t like the rank then jack it in”. I said to him “so now you’re telling me what rank I should be”.’

[48]The Claimant said that he told SM Cook that he was feeling unwell and would like to go and sit on the appliance for a few minutes. He said that SM Cook raised his voice and said several times that, if he was ill, he would book him off sick and send him home. The Claimant accused SM Cook of invading his personal space and speaking to him in an aggressive manner, including shouting ‘don’t turn away from me’. The Claimant walked away from him and went to sit on the appliance for about fifty minutes. When SM Cook came to find him with SM Coleman, the Claimant accepted that he refused to speak to SM Cook and told him that he had no respect for him because of the way he had spoken to him. He stated that SM Cook confirmed in front of SM Coleman that he had told the claimant to ‘jack it in’ and ‘stop giving it “the bigun”’. The Claimant’s evidence at Tribunal as to what happened on the day

[49]In cross-examination the Claimant accepted the following matters.

[50]Although he did not know the layout of the building, he accepted that the OIC of a real-life incident would also not know the layout. However, he said that, when organising drills, it was important from a health and safety perspective to make sure the crew knew the layout, and that safety measures were in place. We find that the Claimant felt unprepared and anxious about being OIC of the drill.

[51]He had a conversation with SM Cook in the watch room at Bethnal Green, SM Cook told him that he would be joining the drill some twenty minutes before it started. Once they arrived at Royal Mint House, CM Norris gave an initial briefing. SM Cook interrupted and instructed them to run it like a normal incident. The Claimant was aggrieved by his interruption. He accepted that he gave the crew instructions as to where the fire was, and the route they should take to get the fourth floor, as well as specific directions as to where to find equipment, and where to put kit. Again, SM Cook intervened to instruct him to run it as a normal incident. The Claimant said that he was ‘on my shoulder commenting’.

[52]The Claimant agreed in cross-examination that it should have been run like a real-life incident, even though he had written in his grievance statement: ‘I could not understand his reasoning as this was not a real-life incident but a preplanned drill organised by Bethnal Green’. We find that SM Cook’s requests were reasonable.

[53]The Claimant accepted that he was wearing an FBU pin, and that SM Cook had taken him to one side, away from the rest of the crew, to ask him to remove it. He raised the subject of others wearing Union Jack pins but, when challenged by SM Cook, could not see anyone present who was doing so. The Claimant assumed that SM Cook was ‘taunting’ him.

[54]Sometime later SM Cook approached the Claimant again and asked him why equipment was being set up before the start of the drill. He said that it needed to be run in real time. The Claimant accepted that he walked away from SM Cook and said this was because SM Cook had started ‘shouting at me’. He accepted that none of the crew involved in the exercise, who gave statements to the LMI, reported SM Cook shouting at the Claimant. We find that he did not.

[55]The Claimant accepted that he took offence at being asked why he had accepted the rank, if he was not willing to perform it, and questioned SM Cook’s right to do so.

[56]The Claimant was taken to SM Cook’s account. Although he denied asking SM Cook whether he thought he was the Commissioner, and saying that he had it in for him, he ‘could not recall’ saying that he felt he had been stitched up, and asking SM Cook who he thought he was. He accepted that he walked away and went to sit on the appliance. He told SM Cook that he did not feel well, and SM Cook said that he would put him on sick leave.

[57]SM Cook approached him with SM Coleman. When SM Cook tried to speak to him, the Claimant agreed that he refused to do so. He accepted that he put his hand out to stop SM Cook speaking. When SM Cook said: ‘have some respect I am a SM’, the Claimant replied: ‘I have no respect for you, after the way you spoke to me’. SM Coleman then ushered SM Cook away and asked the Claimant if he was okay. When the Claimant said no, SM Coleman told him that he would book him ‘incomplete’ and drive him back to Bethnal Green.

[58]The Claimant accepted that SM Coleman was right to say that SM Cook had said: ‘if you’re going to step up to the plate and take the money then you should be expected to fulfil your duty as an officer’. The Claimant accepted that he became agitated and said that he was not going to let him, or anyone, disrespect him.

[59]The Claimant accepted that SM Cook asked him which station he was from and whether he was unwell. The Claimant refused to answer on both occasions and would only communicate with SM Coleman.

[60]We find that was unreasonable behaviour on his part. In our judgment, the Claimant over-reacted to what was, at worst, a robust challenge by SM Cook, which could not properly be characterised as aggressive or bullying behaviour. The Claimant’s first SAR

[61]The Respondent’s grievance procedure provides: ‘Copies of meeting records should be given to the employee including any formal minutes that may have been taken. In certain circumstances (for example to protect a witness) some information may be withheld.’

[62]An issue arose as to whether the obligation to provide minutes of meetings went beyond the minutes of the employee’s own meetings. Mr Sivell accepted that it did. If that were not the case, the reference to the need to ‘protect a witness’ would make no sense.

[63]The Respondent’s harassment procedure provides (under ‘Guidance for complainants’): ‘If there is a formal investigation you are entitled to a copy of your interview notes and a statement of documents which you provide. If you wish to see any other documentation you must make an information access request to the Head of Information Management (see policy number 351).’

[64]The reference to policy number 351 is a reference to the Respondent’s data protection policy, which provides: ‘8. Procedure for handling a SAR 8.9 In preparing to send the collected information to the applicant, the Information Access Team will filter the information to:• Make sure that only the information requested is included.

• Remove duplication (where possible).

• Delete personal information relating to third parties.

• Seek the consent of the third party(ies) to disclose the information where simply deleting the personal information relating to third party(ies) is not practicable.

• Where consent to disclose information is not obtained, consult as appropriate, (including with the Head of Information Management), as to whether it will be lawful to disclose it without consent.

• Consider the application of exemptions where withholding certain information may be deemed necessary.’

[65]On 3 May 2017, the Claimant made an SAR. The request did not refer in terms to the incident of 13 April 2017. Its scope was very broad indeed: he identified fifteen individuals from whom data should be sought and sought documents dating back to 2014. By way of example, he requested: ‘1. All correspondence/documents/emails from May 1, 2014 onwards and concerning me being moved from Bethnal Green fire station, to 1st Islington fire station and subsequently to Walthamstow fire station.’

[66]On 21 May 2017, the Claimant sent a further email asking for disclosure of the F10 statements which had been gathered during the LMI. That request was denied.

[67]On 21 July 2017 Mr Sivell provided a substantive response to the Claimant’s SAR, informing him that data relating to the Respondent’s investigation was exempt from disclosure. Among other things, he wrote: ‘We have also withheld correspondence where disclosing the information would also disclose the personal details of another person (for example where you are a named person in another individual’s Form 10/statement). I can confirm we hold further data about you where you are the ‘subject matter’ which we are not disclosing at this time. Due to the current management investigation into your ongoing grievance, we consider this information exempt from disclosure until a time that the investigation has come to a conclusion. I explain this further below. The DPA provides an exemption for personal data that is part of management forecasts (by virtue of Schedule 7(37)(5) of the DPA – Management forecasts etc.) This exemption applies to personal data that is processed for management forecast or management planning. Such data is exempt from the subject information provisions to the extent that applying those provisions would be likely to prejudice the business or other activity of the organisation. To disclose to you the content of the management investigation, before the papers are compiled, could be detrimental to the process.’

[68]Mr Sivell agreed in cross-examination that the key point of this response was that data could not be disclosed until such time as the investigation was concluded. He accepted that ‘on the surface of it’, the Claimant should have received the documents at the conclusion of the grievance. He agreed that, according to this response, the Claimant would be entitled to see the papers from the LMI once they had been ‘compiled’. He explained that the Information Access team would wait for them to be requested; they would not seek proactively to make disclosure. The outcome of the LMI

[69]On 31 May 2017, the Claimant sent a second grievance to Mr Perez, complaining about the fact that he had discovered that he was subject to an LMI. The grounds were as follows: ‘1) that contrary to the disciplinary code that my employers insisted that I attended what now seems clear was a disciplinary investigation meeting on the 20th April 2017. This meeting was chaired by SM Colin Digby. Contrary to LFB’s disciplinary policy I was never given advanced warning of this meeting and further allowed to be represented. 2) further or in the alternative, that my employers have only instigated a disciplinary process of which I am the subject matter after I submitted a protected act (see s.27 EQA 2010) on the 24th April 2017 when I complained of unlawful discrimination. This is clearly victimisation and contrary to s.27 EQA 2010.’

[70]Mr Perez replied the same day, pointing out that the Claimant was not currently the subject of a disciplinary investigation; an LMI was different from a disciplinary investigation. He referred to the explanation given at the beginning of the record of interview taken on 20 April 2017 (above at para 27). He explained that there was no requirement for advance notice of an LMI, nor was there a right to be accompanied. He confirmed that no live disciplinary investigation was taking place, and that, while the Claimant’s grievance was being investigated, no decision would be taken as to whether, or how, the LMI would be progressed.

[71]In a further email on 6 June 2017, Mr Perez explained the difference between an LMI and a disciplinary investigation. He set out the steps which would be followed if there was a possibility of action under the disciplinary procedure. He attached copies of the relevant procedures. He took care to explain to the Claimant in some detail the significance of an LMI, as well as emphasising the fact that it had been paused, pending the outcome of the grievance procedures. The grievance hearing

[72]The Claimant attended a grievance hearing on 1 June 2017, chaired by GM Powell. The Claimant hand-delivered a document, containing detailed submissions on discrimination law, and how it should be applied in the circumstances. The main point was that SM Cook’s conduct was unreasonable, and that the Respondent should establish whether there was a nondiscriminatory explanation for it. The Claimant identified four witnesses, who should be interviewed: CM Bass and FFs Beacham, Green and Holmes. He did not mention SM Coleman.

[73]At the beginning of the hearing, GM Powell observed that the Claimant was alleging that SM Cook’s conduct was related to his race. The Claimant replied: ‘MH – the reason I put this forward was to find out why he behaved in this way to me. Does he behave in this way to others. I will be submitting a list of questions about his behaviour in general to assess whether his behaviour is discriminatory conduct. RP – do you think he behaves similar to others. MH – I don’t know but I have reviewed my behaviour and what I did on the day and the only thing I can think is because of my colour.’

[74]During the hearing, the Claimant’s FBU rep, Mr Dave Waterman said: ‘Marcus feels he is lacking in any full explanation for removal of CM+. He is seeking permanent removal of CM+. He feels that the Brigade did this unfairly and would like arrangement for it to be permanently removed.’

[75]Towards the end of the hearing GM Powell said that, although normally he would aim to conclude the investigation within seven days, it was likely that this exercise would take ‘a bit longer’ but that he would get back to him as soon as possible. The Claimant said this was agreeable. Subsequent investigations

[76]On 7 June 2017, GM Powell conducted interviews with CM Bass, and FFs Green, Prior, Beacham and Holmes. The records of the interview all state at the outset: ‘the interview is strictly confidential’. 76.1. CM Bass stated that SM Cook initially spoke to the Claimant ‘in a nice manner’. They then moved away, and he did not hear what was said. He did not see a problem. He did not witness any heated or aggressive discussion. 76.2. FF Green did not hear the discussion or notice anything untoward. He said that it ‘looked like a serious conversation’. 76.3. FF Prior saw the conversation but couldn’t hear it; he did not notice any aggressive behaviour or anything out of the ordinary. He did notice the Claimant walking away from SM Cook who appeared still to be tried to talk to him. 76.4. FF Beacham stated that SM Cook ‘just made a simple request and did not speak out of turn at all’. He described the Claimant’s demeanour as that of ‘someone that was “pissed off”. He was slouched down with arms folded’. He did not witness any heated or aggressive discussion. 76.5. FF Holmes described SM Cook saying something to the Claimant, which the Claimant ignored, and SM Cook said something to the effect of ‘Marcus, did you hear that’, at which point the Claimant walked away. He described SM Cook’s conduct as normal, and the Claimant’s conduct as dismissive. All the witnesses were asked whether they heard SM Cook saying ‘if you don’t like the rank, then jack it in’, and all said No.

[77]On 9 June 2017, GM Powell interviewed SM McCallum; on 13 June 2017, he interviewed SM Cook, whose account was consistent with his original statement.

[78]On 11 June 2017, the Claimant wrote to GM Powell, attaching a document similar to the questionnaire which used to be a common feature of discrimination cases, before the repeal of the relevant statutory provision. The first six questions asked for further information about the LMI; seven other questions asked for more general information, for example about the racial composition of the workforce, the number of LMIs conducted since 2012, broken down by categories including the race of the subjects. On 14 June 2017, the Grenfell fire occurred.

[80]On 21 June 2017, GM Powell invited the Claimant to a meeting on 26 July 2017 to discuss his second grievance. The Claimant asked for a postponement to enable him to secure representation.

[81]On 23 June 2017 GM Powell interviewed GM Trew, who was not present for the events, but had received SM Cook’s initial complaint. On 24 June 2017, GM Powell interviewed CM Norris, who said: ‘A: Yes [SM Cook] came up to both of us and asked [us] to stop what we were doing as he wanted the drill to go at real time. Q: Did SM Cook say that in an aggressive or unreasonable manner? A: No, he just asked us. If you say he was having a go at Marcus, then he must have been doing the same to me, as he asked both of us at the same time. But I didn’t take it as him having a go, he just asked us.’

[82]He also stated: ‘I am aware that Marcus has been phoning others, telling them to remember to say that SM Cook had a go at him and shot him down. I have known Marcus for a long time, but I think what he’s doing is wrong and I don’t understand why he’s doing this, as SM Cook did not do that.’

[83]We accept GM Powell’s explanation that he wished to interview SM Coleman but could not find a mutually convenient date. Instead he read the statement given by SM Coleman to the LMI.

[84]On 2 July 2017 the Claimant asked for the second grievance hearing to take place on 14 July 2017. On 6 July 2017, GM Powell told the Claimant that he was on two weeks’ annual leave and would then be taking on a new role as temporary DAC. He asked DAC Perez to allocate a different GM to hear the Claimant’s second grievance. DAC Perez assigned GM Norman the next day. Outcome of the first grievance

[85]On 11 July 2017, GM Powell informed the Claimant that his first grievance had been dismissed. He concluded that there was no evidence to support the Claimant’s allegation that SM Cook was aggressive, nor that he behaved in a bullying manner towards him. He reached his conclusions on the balance of probabilities. He recorded that the Claimant had failed to follow SM Cook’s request for him to treat the drill as if it were an incident and had walked away from SM Cook when he was trying to speak to him. GM Powell accepted that SM Cook asked the Claimant why he had taken the role, but he did not consider this to constitute harassment.

[86]He also wrote: ‘In addition, I understand that you only raised your complaints after you became aware that a management investigation had commenced as a result of your own behaviour. In view of this and given that your claims are not supported by any evidence, I am led to question your motivation in raising your complaint and it appears that your complaint may be designed to frustrate the management investigation.’

[87]Although GM Powell had found that the bullying and harassment did not occur as alleged, he went on to find that the Claimant had provided no evidence that SM Cook’s behaviour was related to his race; nor was there evidence from other sources from which inferences could be drawn to support the allegation.

[88]GM Powell told the Claimant that, if he wished to appeal, he should write to DAC Perez within seven days. The Claimant appealed on 17 July 2017. There were four grounds: 88.1. the first was that GM Powell had ‘failed to set out the methodology adopted to conduct an investigation into my originating grievance’; 88.2. the second was that GM Powell’s analysis was insufficiently robust, in that he ‘fails to set out any “weighting” he gives to any of the evidence he secured from witnesses’; 88.3. the third was that GM Powell had failed to engage with legal authorities concerning proving unlawful discrimination, but had simply ‘taken SM Cook’s rejection of my complaint of unlawful discrimination at face value’; at this point the Claimant mentioned that ‘a very senior officer of the LFB described SM Cook as acting like a “Nazi”. This characterisation of SM Cook flies in the face of what GM Powell described’; 88.4. the fourth ground was that GM Powell had implied that his grievance was made in bad faith.

[89]There was a delay in arranging the appeal hearing, in part because the Claimant was on leave between 6 August 2017 and 26 August 2017. The appeal hearing took place on 1 September 2017, and was conducted by DAC Brown.

[90]At the hearing, the Claimant declined to provide the name of the officer who he said had described SM Cook as a Nazi. It emerged in cross-examination that this referred to an occasion when SM Cook had been (according to the a fellow officer) ‘loud, officious and demanding’. It was put to the Claimant that no link was made by the officer to white supremacy, Holocaust denial, or any other form of racism. The Claimant’s evidence was that he ‘could not comment’ on what was in the officer’s mind when he made the remark. The term appears to have been used in a casually offensive manner.

[91]The Claimant wrote to DAC Brown on 4 September 2017, reminding him that he had asked for the name of the individual who made the ‘Nazi’ comment about SM Cook. He said that he intended to write to DAC Brown about this and other matters by 6 September 2017.

[92]DAC Brown responded: ‘In relation to your email below, my appeal outcome review is based solely on the points first raised within your initial grievance and information available to GM Powell as part of his decision-making process, plus his subsequent grievance decision. This review is not a separate grievance or investigation into any new or other issues you would like to raise, as they were not part of your initial grievance and as such played no part in GM Powell’s decision. With this in mind you are not required to provide me with any further information, as it will not play a part in my review and subsequent outcome decision. Any other matters you feel you need to raise, need to be made via your appropriate line management chain in line with authority policy.’

[93]DAC Brown wrote to the Claimant setting out the grievance appeal outcome on 20 September 2017. He dismissed the appeal. In relation to the discrimination aspect of the grievance, DAC Brown recorded: ‘further when asked by me at your appeal hearing why you felt that any issues which occurred on the 13th April were as a result of your race as you originally stated, you were unable to provide me with any information which supports this assumption other than your response of “a gut feeling”. I went on to ask you whether any derogatory terms were used by SM Cook which may have been of a racist nature. Your response was that “it was derogatory but not race specific.”’ The Claimant’s second grievance

[94]There were two issues in the second grievance: that the Claimant was required to attend ‘what now seems clear was a disciplinary investigation’ on 20 April 2017, without warning or representation; and that the Respondent had only instigated a disciplinary process when the Claimant complained of discrimination, and this amounted to victimisation.

[95]On 11 July 2017 GM Norman wrote to the Claimant to set out his understanding of the scope of the second grievance. The hearing took place on 31 August 2017.

[96]On 12 September 2017, GM Norman wrote to the Claimant, dismissing the grievance. He found that the LMI was not a disciplinary investigation, and that the Claimant was not entitled to notice of, or representation at, the meeting which took place on 20 April 2017. Further, he found that the LMI predated the Claimant’s complaint of race discrimination.

[97]In the letter he also provided a response to questions 1 to 6 of the Claimant’s quasi-questionnaire. He recorded that GM Powell had told the Claimant that question 7 to 13 should be asked by way of a freedom of information request to the Information Access team.

[98]On 19 September 2017, the Claimant indicated that he wished to appeal the outcome of the second grievance and said that he would provide particulars ‘as and when directed’. On 20 September 2017 DAC Perez assigned DAC Hughes to manage the second grievance appeal. On 27 September 2017, DAC Hughes and the Claimant agreed a dated of 9 October 2017 for the hearing.

[99]At the hearing the Claimant submitted a further document entitled ‘grievance appeal particulars – unlawful victimisation because of a protected act’. It alleged that the failure to release the statements collected by GM Powell as part of his investigation into the Claimant’s first grievance was an act of victimisation because he had complained of unlawful discrimination. The Claimant declined to expand upon this when asked to do so at the hearing. After reviewing the document, DAC Hughes declined to deal with points which had not been raised in the original grievance.

[100]On 13 October 2017 DAC Hughes dismissed the Claimant’s appeal against the outcome of the second grievance. He concluded that the grievance had been conducted in a reasonable manner, and that a fair decision had been reached by GM Norman. The conclusion of the LMI

[101]On 17 October 2017 DAC Perez contacted Ms Gibbs for a decision on how to proceed with the Claimant’s case, now that the grievance procedures had been concluded. She told him that a decision would be made following review by Mr Robert Bond, the Authority’s discipline manager.

[102]On 25 October 2017 SM Cook wrote to BC Trew, asking that the investigation into the Claimant’s conduct on 13 April 2017 be resumed. BC Trew consulted Ms Gibbs, who gave him the same answer she had given DAC Perez.

[103]On 26 October 2017 Mr Bond wrote to Mr Trew and Ms Gibbs, copying in Mr Jenkins stating that he did not think the matter warranted an investigation by an HR advisor, and that it should be managed locally (i.e. at Stage 1).

[104]On 15 November 2017 Mr Jenkins informed DAC Perez that his view, and that of DAC Trew, was that the Claimant’s conduct would more appropriately be dealt with at Stage 2, and asked DAC Perez to seek further advice from HR. On the same day, DAC Perez wrote to Mr Bond, saying that he agreed that a review was required ‘due to the attitude, rudeness and insubordinate actions in a public venue at a live exercise’.

[105]On 17 November 2017 Assistant Commissioner Rowe (HR Review) wrote to Mr Perez, saying that in his view rudeness/attitude would correctly be dealt with at Stage 1, but asked for the case to be looked at again in the context of refusing a reasonable order, which might give rise to a higher level of discipline hearing. On 24 November 2017 the Claimant lodged Case 1.

[107]On 27 November 2017 DAC Perez informed Mr Jenkins that his decision was that the matter should proceed with a Stage 1 conduct hearing.

[108]On 20 December 2017 Mr Bond wrote to Ms Matthews that: ‘the view was that CM Headley was rude in his responses to SM Cook, at some point refusing to answer him directly and choosing to answer another Station Manager. However, there was no reference to refusal of an order, or what that order would have been.’

[109]SM McCallum had a further discussion with Ms Matthews. She advised him that, because there was no allegation that the Claimant had refused to obey an order, the matter should be dealt with informally through the use of a Performance Development Plan (‘PDP’), a discussion and a confirmatory letter (‘Letter 1’). The PDP

[110]A meeting took place on 10 January 2018 between SM McCallum and the Claimant. SM McCallum discussed the original incident with the Claimant. The outcome was confirmed in an email of 18 January 2018. SM McCallum resolved the issue by way of a Letter 1 and a PDP for 2 months (backdated to 20 December 2017). The PDP itself contained the following ‘Details of Observation’: ‘Your performance as an officer when undertaking or duties should be to take a full and active part of the tasks and duties which are allocated to you. It is your responsibility to inform your line manager [at] the earliest opportunity if you are unable to do so, for example if you have not undertaken role before wife become unwell. This is vital to the demonstration of competent and professional standards, that the Brigade seeks to maintain.’ In the Tribunal’s judgment, it was self-evident that this referred to the fact that the Claimant had walked away from the drill on 13 April 2017, when he was OIC, and had consequently not discharged his duties on the day. The letter confirmed that this was an informal measure, which did not constitute a disciplinary sanction, and would not form part of the Claimant’s disciplinary record.

[111]The Claimant said that he had ‘no idea’ why he was being issued with PDP. He explained that he had not seen the investigation report, when the PDP was issued. When the Claimant asked to see the evidential basis, SM McCallum advised him to make another SAR. However, when he did make the request, the Respondent refused to provide the F10 statements. The grievance about the PDP

[112]On 17 January 2018, the Claimant wrote to SM McCallum about the meeting on 10 January 2018 (from which it is plain that they discussed the incident on 13 April 2017). The Claimant raised a grievance about the outcome: ‘I write to advise that I do not accept the PDP and do so on the following grounds 1) That I have never been advised what was the actual specific charge/accusation levelled against me and which has resulted in the sanction of the PDP. 2) That I have never been provided with any documentary evidence obtained as a consequence of the LMI. Therefore not only do I not know of the specific charges/accusations levelled against me but nor have I been provided with the documentary evidence relied upon by my employer and which they used to justify the imposition of the PDP. 3) Further and without prejudice to the above, I have not been provided with the particulars of what the PDP will entail and the implications it has on my future employment with LFB. 4) Further and in the alternative I believe that the imposition of a PDP arises out of my complaints against the LFB and which were based on my belief that my employer had discriminated against me on grounds of race and also victimised me contrary to s.27 EQA 2010. 5) Finally, I consider that I have been victimised and/or discriminated against because of my race and on the grounds that I reasonably believe that my employer has failed to impose a similar sanction of PDP or its equivalent, on SM Cook’.

[113]In the email of 18 January 2018 (para 110 above) SM McCallum also wrote: ‘I can confirm that my decision to issue a confirmation of discussion letter and a PDP were not acts of victimisation or race discrimination. I hope that this response resolves this matter informally. If not, please let me know and I will arrange a formal grievance hearing.’

[114]On 21 January 2018 Claimant wrote to SM McCallum, informing him that he wished to proceed with his grievance, and asking him to arrange a formal grievance hearing. He wrote: ‘Further and with respect I would advise you that I have copied in DAC Perez as he is your line manager and the grievance pertains to you and your decision.’

[115]On 24 January 2018, the Claimant wrote to SM McCallum, seeking disclosure of all documents relating to the LMI, and asking for a hearing by a different decision-maker. He explained: ‘[…] as my grievance pertains to you and your decision re the LMI and as you were the recorder of the LMI on the 20th April 2017, it is neither ethical nor legal for you to be the person hearing the grievance. Therefore, I am requesting that the grievance hearing is heard by someone other than yourself.’

[116]SM McCallum replied the same day. He explained that it was common practice within the Brigade for managers to review decisions they have made in a formal grievance procedure; the appeal stage provided the opportunity for the grievance to be reviewed by an independent manager. SM McCallum wrote: ‘I have no ‘motive’ in making this decision, except to apply normal Brigade policy.’

[117]The Respondent’s grievance policy provides as follows: ‘Informal stage Employees should aim to resolve most grievances quickly and informally by discussing them with their line manager. When the grievance is a complaint against the line manager with whom the grievance would normally be raised, the employee can approach that person’s manager or another manager at the same or similar level of authority. If employees are not satisfied with the outcome of this initial informal stage, they may move to the next stage of a formal hearing. Formal stage If a grievance cannot be settled informally, it should then be raised formally in writing with the appropriate level of management. Normally, this will be the line manager. Again, where the grievance is a complaint against the line manager with whom the grievance would normally be raised, the employee can approach that person’s manager or another manager at the same or similar level of authority.’

[118]On 30 January 2018, the Claimant wrote to GM Jenkins asking him to intervene and remove SM McCallum from hearing the grievance. He confirmed that he would not be attending any grievance hearing chaired by SM McCallum. On 31 January 2018, GM Jenkins refused to intervene: ‘I am satisfied that SM McCallum is ‘not the subject of the grievance’ nor is the grievance ‘against’ him. As I understand the subject of the grievance is the PDP. I therefore see no reason for him to recuse himself from hearing your grievance on 2 February 2018 […] If you choose not to attend the planned grievance hearing on Friday, the grievance will be treated as withdrawn.’

[119]The grievance was dealt with by SM McCallum. The Claimant declined to attend the grievance meeting, because he did not trust that he would receive a fair hearing. The grievance was not upheld.

[120]On 20 February 2018, the PDP ended. The Claimant second SAR

[121]On 18 February 2018, the Claimant made a second SAR. He asked for the LMI report, with the supporting evidence. He reminded the recipient that the LMI had now been concluded with the outcome being informal action. He specifically requested the F10 interview forms.

[122]Mr Sivell accepted in cross-examination that there was no evidence of the Information Access team seeking third-party consent to release data. His explanation was that ‘if we believe it is not possible to disclose the information without disclosing identities, and not reasonable to seek consent, we can exempt’. He explained that part of the reasoning was that individuals gave statements believing them to be confidential, and that if the information access team started asking them to give consent for release, they may not think that would be a presumption of confidentiality later on.

[123]Mr Sivell responded to the Claimant’s second SAR on 27 March 2018: ‘Having spoken with those responsible for conducting this investigation, it has been confirmed to me that as this was dealt with at local management level, no further management investigation report was written and that the ‘PDP Letter One’ sent to you by SM McCallum is considered the formal outcome report. I understand you will already have a copy of this however I have reattached this for your records. To address your request for a copy of the ‘supporting evidence that was sent to the area DAC’ and ‘the 21 Form 10s which formed part of this investigation…’ I would draw your attention to my original response, where we exempted this information as its disclosure would result in disclosing the personal details of other individuals. Any statement made by an individual will be considered to be their own personal data and therefore, you would not be entitled to this as part of your SAR. Furthermore, we consider that staff giving witness evidence as part of the conduct investigation do so under presumption of confidentiality.’

[124]Mr Sivell accepted that when he wrote this, it was likely that he knew that the LMI and all other processes had been completed, yet he still refused to provide data from the LMI.

[125]Mr Sivell did not even authorise the release of the Claimant own interview notes, even though he accepted in evidence before the Tribunal that the Claimant was entitled to them. As for the other statements, he continued to maintain that ‘statements given in confidentiality would be the overriding consideration’. He maintained that it would not be possible to redact the statements of others. In our view, that was an indefensible position; it would have been perfectly possible to redact the statements, if it was genuinely considered necessary. In any event, Mr Sivell accepted that there was no evidence of any exercise taking place to review the material and consider whether redaction would be possible.

[126]Mr Sivell accepted that, when he refused the second SAR, he knew that the Claimant had issued a grievance alleging race discrimination, that he had appealed the outcome of that grievance and complained again of race discrimination, that he had issued Tribunal proceedings in which he complained of discrimination, and that he had issued a further grievance in January 2018 in which he complained of discrimination.

[127]Mr Sivell was asked by the Tribunal whether he had ever disclosed F10 statements. He said that he could not recall a case when witness statements had been disclosed; the fact that statements were given with confidentiality ‘would have been our position most times, we would review on a case-by-case basis, but that is likely to be the case when were asked to disclose other people’s witness statements’.

[128]Because the Claimant was dissatisfied with the Respondent’s response to his request, he complained to the ICO. The Respondent explained to the ICO in its response that it had relied on specific exemptions in refusing access to statements: ‘The Brigade has generally relied on this exemption when dealing with subject access requests linked to investigations connected with staff conduct matters (e.g. grievance and disciplinary cases). In such cases, there is often a large volume of material including witness statements collected as part of an investigation. In line with ICO guidance relating to the ‘management forecasting’ exemption, we recognise that some of the withheld information relates to Mr Headley, but it is also the date of third parties. As we advised Mr Headley, much of the data collected as part of the management investigation is exempt from the subject access provisions to the extent that applying those provisions would be likely to prejudice the business or other activity of the Brigade; in this case, in being able to conduct an internal management investigation connected with staff conduct (i.e. a complaint/grievance). We believe, that to disclose to Mr Headley the content of the management investigation could be detrimental to the process.’

[129]The response also contained a detailed timeline of the handling of the request, and acknowledged some failings, particularly unjustified delay in dealing with the Claimant’s May 2017 request.

[130]The ICO replied on 14 August 2018, stating that it seemed likely that the personal data to which the Claimant was entitled had been provided, and that the exemption used had been applied correctly, because the information withheld constituted third-party data. It was critical of the delays. The law The burden of proof

The law

[131]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

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

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[132]The effect of these provisions was conveniently summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.2 He explained the two stages of the process required by the statute as follows: 2 Madarassy v Nomura International plc

[2007] ICR 867

, CA(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … 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 had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”

(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’

[133]In Royal Mail Group v Efobi

[2021] ICR 1263

, the Supreme Court held that, at the first stage all the evidence had to be considered, from whatever source it had come, not just the evidence adduced by the Claimant. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense; that whether any positive significance should be attached to the fact that a person had not given evidence depended entirely on the context and particular circumstances. Where it was said that an adverse inference ought to have been drawn from a particular matter, the first step had to be to identify the precise inference which allegedly should have been drawn. Even if the inference is drawn, the question then arises as to whether it would, without more, have enabled the Tribunal properly to conclude that the burden of proof had shifted to the employer.

[134]In Hewage v Grampian Health Board

[2012] ICR 1054

at [32], the Supreme Court held that the burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other.

[135]The Court of Appeal in Anya v University of Oxford

[2001] ICR 847

at [2, 9, 11] held that, in a discrimination case, the employee is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of the causative link between the protected characteristics on which he relies and the discriminatory acts of which he complains. The Tribunal must avoid adopting a ‘fragmentary approach’ and must consider the direct oral and documentary evidence available and what inferences may be drawn from all the primary facts. The Tribunal should consider indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by unlawful factors. Direct discrimination because of race

[136]S.13(1) EqA provides: (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.

[137]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is subjective (Nagarajan v London Regional Transport

[2000] ICR 501

, per Lord Nicholls at 511). Lord Nicholls considered the distinction between the ‘reason why’ question from the ordinary test of causation in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

at [29]: ‘Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’

[138]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of; it need not be the sole ground for the decision (Nagarajan per Lord Nicholls at 513).

[139]In Reynolds v CLFIS (UK) Ltd

[2015] ICR 1010

at [36], the Court of Appeal confirmed that a ‘composite approach’ to an allegation of discrimination is unacceptable in principle: the employee who did the act complained of must himself have been motivated by the protected characteristic.

[140]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion.

[141]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at [11-12], Lord Nicholls questioned the need for a two-stage approach, particularly in cases where no actual comparator was identified: ‘[…] employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the Claimant […]’

[142]Since Shamoon, the appellate courts have encouraged Tribunals to address both stages of the statutory test by considering the single ‘reason why’ question: was it on the proscribed ground, or was it for some other reason? Underhill J summarised this line of authority in Martin v Devonshire’s Solicitors

[2011] ICR 352

at [30]: ‘Elias J (President) in Islington London Borough Council v Ladele (Liberty intervening)

[2009] ICR 387

developed this point, describing the purpose of considering the hypothetical or actual treatment of comparators as essentially evidential, and indeed doubting the value of the exercise for that purpose in most cases-see at paras 35–37. Other cases in this Tribunal have repeated these messages- see, eg, D'Silva v NATFHE

[2008] IRLR 412

, para 30 and City of Edinburgh v Dickson (unreported), 2 December 2009 , para 37; though there seems so far to have been little impact on the hold that “the hypothetical comparator” appears to have on the imaginations of practitioners and Tribunals.’ Victimisation

[143]S.27 Equality Act 2010 (‘EqA’) provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. …

[144]The test of causation in a victimisation complaint is whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as he did (West Yorkshire Police v Khan

[2001] IRLR 830

). Conclusions: Case 1 Victimisation: protected act

[145]The Respondent accepts that the Claimant’s grievance of 24 April 2017 was a protected act. Issues 1(a)(i) (direct discrimination) and 5(a)(i) (victimisation): GM Powell failed to carry out a reasonable investigation into the Claimant’s grievance of 24 April 2017, in that he simply accepted SM Cook’s version of events. The Respondent contends that GM Powell reached his decision on balance or probabilities after carrying out a reasonable investigation

[146]In our judgment, GM Powell did not ‘fail to carry out a reasonable investigation’, nor did he ‘simply accept SM Cook’s version of events’. He interviewed the Claimant and the four witnesses the Claimant identified. He also interviewed SM Cook and three other witnesses, and reviewed the LMI statements. As for the fact that he did not interview SM Coleman, we have accepted that he was unable to do so. In any event, this did not disadvantage the Claimant, since SM Coleman did not support the Claimant’s account. We note that the Claimant did not ask GM Powell to interview SM Coleman, probably because he knew that it would not assist him.

[147]We regard Mr Panton’s criticisms of GM Powell’s process as unrealistically demanding. This was not a judicial, or quasi-judicial process, it was an internal grievance process. In the circumstances, we are satisfied that GM Powell conducted a balanced and thorough investigation.

[148]Because we have concluded that the conduct did not occur as alleged, these claims of direct discrimination (Issue 1(a)(i)) and victimisation (Issue 5(a)(i)) fail. Issues 1(a)(ii) (direct race discrimination) and 5(a)(ii) (victimisation): [GM Powell and Mr Brown] failed to disclose witness statements obtained as part of the investigation into the Claimant’s grievance or appeal, and such failure to disclose witness statements was contrary to the Respondent’s grievance policy. The Respondent disputes that it was obliged to disclose witness statements

[149]We are satisfied that it was the general practice of this Respondent to require employees to make a formal request for disclosure to the Information Access team in order to secure documents.

[150]We have concluded that the sole reason why both GM Powell and DAC Brown declined to disclose witness statements, relating to the Claimant’s grievance and appeal, was because it was their genuinely held belief that the correct procedure for requesting such statements was for the complainant to make an SAR to the Information Access team, and it was not open to them to grant disclosure outside that procedure. Whether the underlying policy was a sound one is immaterial: that was the reason why they acted as they did; it had nothing to do with the Claimant’s race or with the fact that he had complained of discrimination in the grievance of 24 April 2017.

[151]For these reasons the claims of direct discrimination (Issue 1(a)(ii)) and victimisation (Issue 5(a)(ii)) fail. Issues 1(b) (direct race discrimination) and 5(b) (victimisation): GM Powell dismissed the Claimant’s grievance of 24 April 2017 on 11 July 2017

[152]The following exchange took place in cross-examination of the Claimant: Counsel: GM Powell’s dismissal of the grievance had nothing to do with your race? C: No. Counsel: Can I suggest that GM Powell did not decide your case against you because you had made an allegation of race discrimination, agree or disagree? C: That’s correct.

[153]In our view, those were sensible concessions by the Claimant. We have concluded that the sole reason why GM Powell dismissed the Claimant’s grievance was because he concluded that SM Cook had not conducted himself in the manner alleged by the Claimant: he had not acted aggressively, nor in a bullying way. None of the witnesses to whom GM Powell spoke, nor indeed the witnesses who provided statements in the context of the LMI (which he read), corroborated the Claimant’s account of what had happened on the day. Further, the Claimant made damaging concessions in his own account of the events. Self-evidently, GM Powell did not have to go on and consider the reason for treatment which he had concluded did not occur; he did so for completeness, concluding that race was not a factor in the events in question.

[154]GM Powell reached his conclusions on the balance of probabilities. We are satisfied that they were open to him, supported by evidence, and represented his genuine assessment of the merits of the grievance. Neither the Claimant’s race, nor the fact that he had complained of discrimination in the grievance of 24 April 2017, played any part whatsoever in his decision.

[155]The claims of direct race discrimination (Issue 1(b)) and victimisation (Issue 5(b)) fail. Issues 1(c) (direct race discrimination) and 5(c) (victimisation): [GM Powell] accused C in the grievance outcome letter of 11 July 2017 of acting in bad faith but failing to provide any evidence to support this assertion in the grievance outcome letter. R denies accusing C of acting in bad faith and will say GM Powell’s reasons for doubting C’s account are clear on the face of the letter

[156]It is right that GM Powell referred, in his outcome letter, to his doubts about the Claimant’s motivation in raising his grievance (para 86). However, he did not ‘accuse the Claimant of acting in bad faith’, as the Claimant alleged; he did not even express a concluded view. Nor was there an absence of evidence to support his doubts: it was unarguably correct that the Claimant raised his grievance about SM Cook after he became aware of the LMI into his own conduct on 13 April 2017; and GM Powell’s doubts were compounded by what he regarded as the unmeritorious nature of the complaint, which had not been corroborated by witnesses. On one view, the conduct did not occur as alleged.

[157]In any event, we have concluded that the reason why GM Powell questioned the Claimant’s motivation was because he was genuinely concerned that the Claimant may have been acting tactically in submitting a grievance at a time when he was facing disciplinary charges.

[158]We tested that conclusion by reference to the burden of proof provisions. There was no evidence of less favourable treatment by reference to an actual comparator. Nor were we satisfied that there was evidence, from which we could reasonably conclude that GM Powell, in comparable circumstances, would have omitted these observations, had the complainant been white, or not done a protected act. The mere fact that he accepted in cross-examination that he was aware that the Claimant had instructed solicitors and that there was a risk of Tribunal proceedings was not enough, in our judgment, to shift the burden of proof in relation to the victimisation claim. We note that there was no reference in the passage in question to the fact that the grievance contained an allegation of discrimination.

[159]For these reasons, the claims of direct discrimination (Issue 1(c)) and victimisation (Issue 59c)) fail. Issues 1(d) (direct race discrimination) and 5(d) (victimisation): The Respondent’s Information Access Team failed to provide the witness statements obtained during the grievance investigation to the Claimant in response to his subject access request on 21 July 2017

[160]This allegation relates only to the protected act contained in the first grievance of 24 April 2017, and can only relate to conduct predating the ET1 in Claim 1.

[161]It is accepted that the Respondent failed to disclose these statements. In the Respondent’s ET3 (at paras 44-45), it pleaded that the data was exempt from disclosure ‘until such time as the management investigations/grievances were concluded, on the basis that the disclosure could be detrimental to the process’. Mr Sivell accepted that, on its face, this suggested that the Claimant would be able to see the data once the process was concluded. We also record Mr Sivell’s evidence that relevant statements might still be withheld for data protection reasons, even if the statement was potentially exculpatory. He explained: ‘until the process was concluded, he may not see the witness statements’.

[162]In relation to this complaint, we are satisfied that the reason why disclosure was not provided at this stage was because it was the Respondent’s general practice to withhold disclosure until the completion of the process. We record that, in our experience, that is a very unusual practice, which has the potential to give rise to unfairness. Nonetheless, we are satisfied that this was the Respondent’s practice and neither the Claimant’s race, nor the fact that he had done a protected act, payed any part in the decision. Consequently, the claims of direct race discrimination (Issue 1(d)) and victimisation (Issue 5(d)) fail.

[163]We note that this explanation gives rise to an expectation that, once the process was completed, disclosure could take place, subject to other considerations. That will be relevant to our conclusions in relation to the claims below. Issues 1(e) (direct race discrimination) and 5(e) (victimisation): [Wayne Brown] dismissed the Claimant’s grievance appeal of 17 July 2017 on 20 September 2017

[164]The Tribunal considers it is in a position to make a positive finding as to why DAC Brown dismissed the Claimant’s grievance appeal: he did so because he concluded that GM Powell had good grounds for rejecting the grievance and had not made any error is doing so; DAC Brown agreed with GM Powell’s conclusion and did not consider that the Claimant’s grounds of appeal had any merit. The Claimant’s race, and the fact that he complained of discrimination, played no part whatsoever in his decision to dismiss the appeal.

[165]We observe at this point that DAC Brown is Black and, although it is not impossible for someone to subject a person of the same racial group to direct race discrimination, there must be same basis for pursuing the allegation.

[166]Mr Panton argued that there was some inconsistency in relation to DAC Brown’s handling of the ‘Nazi’ comment which the Claimant had mentioned (para 90-92). It is right that, when the Claimant first mentioned this incident, DAC Brown appears to have been open to considering the matter, if the Claimant provided further information. When the Claimant indicated in an email after the hearing that he might do so, DAC Brown decided that the issue could not be considered. Mr Panton submitted that this showed DAC Brown had a closed mind in dealing with the appeal. What he did not submit was that this was indicative of race being a factor in DAC Brown’s decision, or the fact that the Claimant had complained of race discrimination. In any event, we have concluded that there is a simpler explanation, which is that DAC Brown changed his mind: on reflection he decided that the matter was not relevant.

[167]The only other matter which Mr Panton relied on was the absence of notes of a discussion which Mr Brown said he had with GM Powell. It was an error of process not to keep notes, but in our judgment it does not provide evidence from which we could reasonably conclude that the Claimant’s race, or the fact that he had made protected disclosures, played any part in Mr Brown’s decision.

[168]For these reasons the claims of direct race discrimination (Issue 1(e)) and victimisation (Issue 5(e)) are not well-founded and are dismissed. Conclusions: Case 2 Protected acts

[169]The Respondent accepts that the Claimant’s grievance (24 April 2017), grievance appeal (17 July 2017), Tribunal ET1 In Case 1 (24 November 2017), and grievance (17 January 2018) are protected acts. Issues 7(a) (direct race discrimination) and 11(a) (victimisation): On 10 January 2018, [SM McCallum] issued the Claimant with a personal development plan (PDP) which was to last for a period of two months

[170]We are satisfied that the sole reason why SM McCallum issued the Claimant with a PDP was because, on the information available to him, he concluded that the Claimant’s actions at the April exercise fell short of what was expected of him as a junior manager, and needed to be addressed. He discussed the events with the Claimant at the meeting of 10 January 2018, explained his reasoning, and issued a PDP and Letter 1 which reminded the Claimant of his obligations to take a full and active part in the duties assigned to him, and to tell his manager if he felt unwell, or otherwise unable to perform a task. There was nothing improper in that. A PDP is an informal mechanism, not a disciplinary sanction. It was the lowest available marker of concern available to the Respondent.

[171]In the Tribunal’s view, the Claimant’s conduct might properly have been the subject of disciplinary action. On his own account, he had declined to run the exercise in real-time, despite being asked to do so by SM Cook; he had walked away from an exercise, of which he was in charge; he had refused to answer questions from SM Cook, who was his superior officer; and he had told SM Cook, in front of another officer, that he had no respect for him. In the circumstances, the Tribunal would have been surprised if no action had been taken. The Claimant was aggrieved that no action was taken against SM Cook for his actions on the day. However, there was no evidence to corroborate his allegation of misconduct against SM Cook: none of those who witnessed the interaction agreed that SM Cook had behaved aggressively or improperly. There was a material difference in their circumstances.

[172]We are satisfied that the Claimant’s race, and the fact that he had done protected acts, played no part whatsoever in SM McCallum’s decision.

[173]The claim of direct race discrimination (Issue 7(a)) and the claim of victimisation (Issue 11(a)) are not well-founded and are dismissed. Issues 7(b) (direct race discrimination) and 11(b) (victimisation): SM McCallum refused to recuse himself from hearing C’s grievance about the decision to issue him with a PDP dated 17 January 2018

[174]Mr Panton did not pursue a submission that SM McCallum refused to recuse himself because the Claimant is Black. Apart from the fact that the allegation was not pursued, we have concluded that there is no evidence on the basis of which the Tribunal could reasonably conclude that SM McCallum’s decision not to recuse himself was in any way influenced by the Claimant’s race. For that reason, the claim of direct race discrimination (Issue 7(b)) fails.

[175]The position is different in relation to the victimisation claim, which Mr Panton did pursue. The Claimant was raising a grievance about a decision taken by SM McCallum (SM McCallum himself refers to it as ‘my decision’ in his email of 18 January 2018). For that reason alone, he was the wrong person to deal with the grievance. The fact that Claimant had alleged that the decision was discriminatory made it even more inappropriate. It ought to have been obvious to him, and to those advising him, that natural justice precluded him for determining those allegations himself. He should have recused himself. In our judgment, the decision not to do so was more than unreasonable, it was perverse.

[176]Further, we have concluded that there is the ‘something more’ needed to shift the burden of proof in the fact that SM McCallum summarily rejected the allegation of discrimination (before hearing any evidence) in his email to the Claimant of 18 January 2018, without even meeting the Claimant to discuss the allegation. In our judgment, this was such an extraordinary thing to do, that a Tribunal could reasonably conclude, absent an adequate explanation, that the fact that the Claimant had complained of discrimination, rather than (say) unfairness, was particularly objectionable to SM McCallum, and was a material factor in his approach to the matter. Accordingly, we are satisfied that the burden shifts to the Respondent.

[177]The Respondent’s explanation was essentially that its decision was consistent with its own policies. SM McCallum explained in his statement (para 19) that: ‘there is an informal stage in the Respondent’s grievance policy, whereby the manager (original decision maker) can discuss the grievance with the employee in an attempt to resolve the grievance.’

[178]The difficulty with this is that SM McCallum rejected the allegation of discrimination before any kind of discussion (formal or informal) had taken place. Further, the Claimant declined to address the matter informally and asked to proceed to a formal grievance. SM McCallum’s evidence continue (para 20) as follows: ‘It should be noted that it is the Respondent’s practice for managers to review decisions they have made under the formal grievance procedure on the basis that the appeal stage provides an opportunity for the decision to be reviewed by another manager.’

[179]It would be an exceptionally unusual policy, which allowed a grievance officer to rule on his own decision, in circumstances where the employee has already declined to engage in informal resolution with him. In fact, there is no such policy: it is clear from the terms of the Respondent’s policy (para 117) that the employee has the option, at both formal and informal stages, to ask for his grievance not to be heard by his line manager, if the complaint is about that manager.

[180]GM Jenkins’ explanation was that SM McCallum was ‘not the subject of the grievance and the grievance is not against him, but the subject of the grievance was the PDP’. Ms Gibbs stated that ‘in my view, the grievance was not ‘about’ SM McCallum but about a decision he had taken’. This is pure sophistry. The Claimant’s grievance was about a decision (to issue a PDP), taken by SM McCallum. It was clearly a complaint about SM McCallum, and he was clearly the subject of the complaint.

[181]We have concluded that such explanations as were advanced by the Respondent were not adequate, and did not discharge the burden on the Respondent to show that the decision that SM McCallum should not recuse himself was in no sense whatsoever because the Claimant had complained about discrimination.

[182]The detriment to the Claimant is obvious: his grievance was dealt with by a decision-maker who had already pre-determined part of it, and who could not reasonably be regarded as impartial.

[183]Consequently, and by operation of the burden of proof provisions, this claim of victimisation (Issue 11(b)) must succeed. Issues 7(c) (direct race discrimination) and 11(c) (victimisation): R refused to provide the Claimant with the evidential basis for the decision to issue him with a PDP, including failing to provide C with a copy of the Local Management Investigation report and the 21 collected witness statements.

[184]We consider that the Claimant has not proved facts from which we could reasonably conclude that that decision not to disclose the statements was because of the Claimant’s race. He has led no evidence of a difference of treatment, coupled with a difference of race, let alone evidence, from which the Tribunal could reasonably conclude that Mr Sivell’s decision was tainted by considerations of race. We are not persuaded that the failure to answer some of the questions in the Claimant’s quasi-questionnaire, or the existence of articles criticising the Respondent’s record on diversity, provided that evidence; it was too generalised to throw any meaningful light on Mr Sivell’s own mental processes. For these reasons, the claim of direct race discrimination (Issue 7(c)) fails.

[185]Again, the position is different when it comes to the victimisation claim.

[186]The Claimant had been led to believe when he made his first SAR that, once the LMI process had been concluded, he would be entitled to see the relevant documents. However, when he made his second SAR in February 2018, by which time the LMI had been concluded, he was told that the material would not, in fact, be disclosed to him.

[187]Between the two SARs, the Respondent’s position appeared to have changed. Between the two SARs, the Claimant had issued Tribunal proceedings, raising complaints of race discrimination. Mr Sivell accepted that he knew this, although it was unclear to the Tribunal why the Head of Information Access would be informed about the existence of Tribunal proceedings. Moreover, there was no evidence that Mr Sivell, or anyone else in the Information Access team, had gone through the kind of case-by-case review which the Tribunal was told would usually occur. The Claimant’s request met with a blanket refusal; in that respect he was treated differently.

[188]Taking these factors together, we consider that the Claimant has proved facts from which a Tribunal could reasonably conclude that the decision not to disclose the documents was materially influenced by the fact that the Claimant had issued proceedings in the intervening period; the burden passes to the Respondent to show that this played no part whatsoever in the decision.

[189]Mr Sivell was asked by the Tribunal whether he had ever disclosed F10 statements. He said that he could not recall a case when witness statements had been disclosed; he added that the issue of confidentiality ‘would have been our position most times, we would review on a case-by-case basis, but that is likely to be the case when were asked to disclose other people’s witness statements’. We found that explanation to be contradictory: on the one hand it suggested that non-disclosure happened ‘most times’ and was ‘likely’, which suggested that there were exceptions; on the other hand Mr Sivell could not recall any such exceptions. Moreover, there was no explanation as to why there was no case-by-case review in this instance.

[190]Ms Gibbs, who is Head of HR and Employee Relations, gave somewhat different evidence: that F10 statements would be disclosed, but only if the matter proceeded to a Stage 1 conduct hearing (a distinction which Mr Sivell did not make). Ms Gibbs said that an employee would be ‘unlikely’ to have disclosure at a more initial stage ‘because it’s a live investigation’. That explanation was itself unsatisfactory since, at the point when the Claimant made his second SAR, the LMI had been concluded.

[191]In her closing submissions, Ms King submitted that ‘under the disciplinary policy, employees are not entitled to the disclosure of documents and witness statements when matters are dealt with informally’. In fact, the disciplinary policy is silent on the issue of disclosure at the informal stage.

[192]Taking into account the contradictory nature of Mr Sivell’s evidence, the different explanation given by Ms Gibbs, which was also unsatisfactory, and the absence of any documentary evidence to support the Respondent’s position, we are not satisfied that the Respondent has given an adequate, non-discriminatory explanation for the failure to disclose to the Claimant the LMI material, including the F10 statements, after the LMI was concluded.

[193]Because the Respondent has failed to discharge the burden on it, the claim of victimisation (Issue 11(c)) succeeds.

Remedy

[194]The parties shall attend the November hearing of Case 3, prepared to deal with the issue of remedy (which the Tribunal understands to be confined to injury to feelings), arising out of our conclusions in relation to Case 2. Employment Judge Massarella 4 October 2021 Case No. 3201597/2017 DIRECT RACE DISCRIMINATION CONTRARY TO SECTION 13 EQUALITY ACT

Remedy

[1]Did R treat C less favourably than R did or would treat others who did not share C’s race in the following ways:(a) Failing to carry out a reasonable investigation into the Claimant’s grievance/appeal in the following ways: (i) C will say Group Manager (GM) Rhys Powell, the manager who investigated C’s grievance, simply accepted Station Manager (SM) Cook’s version of events. R will say GM Powell reached his decision on balance or probabilities after carrying out a reasonable investigation. (ii) C will say R failed to disclose witness statements obtained as part of the investigation into the Claimant’s grievance or appeal and such failure to disclose witness statements was contrary to R’s grievance policy. R disputes that R was obliged to disclose witness (iii) The Respondent failed to offer the Claimant the opportunity to consider mediation. The Claimant alleges that this was contrary to the Respondent’s Grievance Procedure.

(b) Dismissing C’s grievance of 24 April 2017;

(c) Accusing C in the grievance outcome letter of 11 July 2017 of acting in bad faith but failing to provide any evidence to support this assertion in the grievance outcome letter. R denies accusing C of acting in bad faith in the letter and will say GM Powell’s reasons for doubting C’s account are clear on the face of the letter;

(d) The Respondent’s Information Access Team failed to provide the witness statements obtained during the grievance investigation to the Claimant in response to his subject access request on 21 July 2017.

(e) Dismissing C’s grievance appeal of 17 July 2017 on 20 September 2017.

[2]Has C proved facts from which a Tribunal could conclude in the absence of any other explanation, that R directly discriminated against C because of his race?

[3]If so, has R proved that it did not discriminate against C because of his race? VICTIMISATION CONTRARY TO SECTION 27 EQUALITY ACT 2010

[4]R admits that C’s grievance of 24 April 2017 is a protected act.

[5]Did R subject C to the following detriments:(a) Failing to carry out a reasonable investigation into the Claimant’s grievance/appeal in the following ways: (i) C will say Group Manager (GM) Rhys Powell, the manager who investigated C’s grievance, simply accepted Station Manager (SM) Cook’s version of events. R will say GM Powell reached his decision on balance or probabilities after carrying out a reasonable investigation. (ii) C will say R failed to disclose witness statements obtained as part of the investigation into the Claimant’s grievance or appeal and such failure to disclose witness statements was contrary to R’s grievance policy. R disputes that R was obliged to disclose witness (iii) The Respondent failed to offer the Claimant the opportunity to consider mediation. The Claimant alleges that this was contrary to the Respondent’s Grievance Procedure.

(b) Dismissing C’s grievance of 24 April 2017 on 11 July 2017 (R admits C’s grievance was dismissed.)

(c) Accusing C in the grievance outcome letter of 11 July 2017 of acting in bad faith but failing to provide any evidence to support this assertion in the grievance outcome letter. R denies accusing C of acting in bad faith and will say GM Powell’s reasons for doubting C’s account are clear on the face of the letter;

(e) Dismissing C’s grievance appeal of 17 July 2017 on 20 September 2017. (R admits C’s grievance appeal was dismissed.)

[6]If so, did R subject C to the above detriments because of his protected act? Case No. 3200756/2018 DIRECT RACE DISCRIMINATION CONTRARY TO SECTION 13 EQUALITY ACT

[7]Did R treat C less favourably than R did or would treat others who did not share C’s race in the following ways:(a) On 10 January 2018, R issued C with a personal development plan (PDP) which was to last for a period of two months;

(b) Station Manager McCallum refused to recuse himself from hearing C’s grievance about the decision to issue him with a PDP dated 17 January 2018;

(c) R refused to provide the Claimant with the evidential basis for the decision to issue him with a PDP, including failing to provide C with a copy of the Local Management Investigation report and the 21 collected witness

[8]Has C proved facts from which a Tribunal could conclude in the absence of any other explanation, that R directly discriminated against C because of his race?

[9]If so, has R proved that it did not discriminate against C because of his race? VICTIMISATION CONTRARY TO SECTION 27 EQUALITY ACT 2010

[10]R admits that C’s grievance dated 24 April 2017, appeal dated 17 July 2017, ET Proceedings dated 24 November 2017, and grievance dated 17 January 2018 are protected acts.

[11]Do the following acts amount to detriments:(a) On 10 January 2018, R issued C with a personal development plan (PDP) which was to last for a period of two months;

(b) Station Manager McCallum refused to recuse himself from hearing C’s grievance about the decision to issue him with a PDP dated 17 January 2018;

(c) R refused to provide C with the evidential basis for the decision to issue him with a PDP, including failing to provide C with a copy of the Local Management Investigation report and the 21 collected witness statements.

[12]If so, was C subject to a detriment because he undertook a protected act?

[2]Cases 1 and 2 were brought while the Claimant was still in the Respondent’s employment. Case 3 was brought after the employment was terminated and contains a claim of unfair dismissal. The first two cases were consolidated in May 2018, the third in May 2019.

[3]The first hearing, listed for January/February 2019, was postponed because the Claimant was unwell and because he intended to issue Case 3. The second hearing, which was listed in April/May 2021, was postponed because of the Covid-19 pandemic.

[4]A hearing was listed in June 2021 to deal with all three cases, the Respondent’s main witness in Case 3 (DAC Philpott, who took the decision to dismiss) was unable to attend because of illness. EJ Jones ordered that Case 3 be heard separately. She considered it important that Cases 1 and 2 proceed, given that they related to events in 2017/2018.

[5]Cases 1 and 2 were heard over five days in late June/early July 2021. Judgment was sent to the parties on 4 October 2021. The Tribunal upheld two of the Claimant’s victimisation claims: in relation to SM McCallum’s decision not to recuse himself from dealing with the Claimant’s grievance about a decision he had taken himself; and in relation to the Respondent’s refusal to disclose documents relating to the Local Management Investigation into an incident involving the Claimant. All other claims were dismissed.

[6]This hearing dealt solely with Case 3. Because the only remedy pursued in relation to the successful claims in Case 2 was an award for injury to feelings, we also heard evidence and submissions about that issue. The hearing

[7]We spent some time clarifying the issues at the beginning of the hearing. The final version of the agreed list of issues is in the appendix to this judgment. Mr Panton took instructions and confirmed that the allegation of victimisation relating to the length of time it took to arrange an appeal hearing was solely made against Ms Durand.

[8]We had an agreed bundle running to some 1345 pages. We read into the case on the morning of the first day. We then heard evidence from: 8.1. the Claimant; for the Respondent, we heard from: 8.2. Ms Josie Durand (HR Adviser, North West Area), who conducted the disciplinary investigation; 8.3. Asssistant Comissioner (AC) Jane Philipott, who was a Deputy Assistant Commissioner (DAC) at the material time, and the dismissing officer.

[9]We had helpful written submissions from both advocates, which they supplemented orally. We do not summarise them in what is already a long judgment, but refer to certain submissions below; we are grateful to them both for their assistance throughout these hearings. We apologise to the parties for the delay in sending out this judgment, which was caused by pressure on judicial resources. Findings of fact The Respondent’s policies

[10]The Respondent’s disciplinary policy at Appendix 1 contains a non-exhaustive list of offences regarded as gross misconduct, which includes: ‘serious incapacity at work brought on by misuse of alcohol or illegal drugs’. Para 20 provides: ‘The timing and location of the hearing should where practicable be agreed with the employee and/or their representative. The length of time between the written notification and the hearing should be long enough to allow the employee and/or their representative to prepare and shall in any event be not less than: - seven days for the first formal stage; - ten days for the second stage; - twenty-one days for the third stage.’ With regard to the appeal process, the policy provides: ‘Normally the Appeal Manager will conduct the appeal hearing as a rehearing (in full or in part), where this is required. Otherwise the appeal hearing will be conducted as a review. A rehearing would normally be required in the following instances (this is not necessarily an exhaustive list): - There was a procedural defect at the original hearing such that the hearing was unfair. - New evidence has come to light which needs to be heard in full. - There is a dispute about evidence given by one or more witnesses at the original hearing. In these cases it may be necessary to rehear the witness evidence at the appeal. […] Para 67 provides: ‘In the course of a disciplinary process, an employee might raise a grievance that is related to the case. If this happens, the manager should consider suspending the disciplinary procedure for a short period while the grievance is dealt with. Depending on the nature of the grievance, the manager may need to consider bringing in another manager to deal with the disciplinary process (see ACAS code).’ Para 23 App 1 provides: ‘An employee and/or their representative who cannot attend a hearing should inform the manager in advance, as soon as possible. If the employee fails to attend through circumstances outside their control, and unforeseeable at the time the hearing was arranged (e.g. illness), the manager should arrange another hearing. A decision may be taken at a hearing in the employee’s absence if they fail to attend the rearranged hearing without good reason. An employee’s representative may attend on their behalf, if the employee is unable to attend. If an employee’s representative cannot attend on a proposed date, the employee has a statutory right to suggest another date, so long as it is reasonable, and is not more than seven days after the date originally proposed by the employer. This seven day time limit may be extended by mutual agreement.’

[11]There is a separate policy containing ‘Disciplinary Rules’. It identifies gross misconduct offences, which include: ‘Serious breaches of health and safety regulations and/or endangering others. Unfit for work through influence of alcohol or illegal drugs.’

[12]There is then an Alcohol and Drugs Policy, which provides at para 3.2: ‘Drugs No employee should report for work with traces of illegal drugs in their body systems. The London Fire Brigade has zero tolerance of illegal drug consumption.’ Para 11.3 provides: ‘Routine Periodic Medicals (RPM) – alcohol and drugs screening will form part of the required medical assessments of individuals.’ Para 12.1 provides: ‘Employees will normally be subject to disciplinary procedures which may lead to dismissal, if they:  Fail an alcohol test with 30 milligrams (mg) or more per 100 millilitres (ml) of blood, or the equivalent in urine or breath.  Fail a drugs test.’ Para 21 provides: ‘A positive result from the laboratory will be referred to an independent occupational health physician (the ‘medical review officer’ (MRO)) who will conduct a medical review of the result. The MRO may then report a negative outcome to HML, e.g. taking into account medication. The MRO may or may not wish to speak to the individual before reporting the outcome to HML. Where the MRO wishes to speak to the individual, the individual will be provided with an opportunity to speak to the MRO […] Where the MRO does not wish to speak to the individual, the MRO will notify HML of the outcome directly.’ HML (Health Management Limited) was the Respondent’s Occupational Health Service. The drugs test on 4 July 2018

[13]The Respondent carried out Routine Period Medicals (RPMs) on firefighters every three years. They were given 28 days’ notice. The drug and alcohol test formed part of the RPM. The Claimant had had these tests in the past; he was familiar with the procedure; he had advance notice of the test, which took the form of a urine test; and he had consented to it in writing. The consent form included the following passage: ‘I understand that any positive result may result in me being placed ‘unfit’ for work and may render me liable to disciplinary action by the LFB. A positive result means the detection of drugs in the urine or of an excess breath alcohol level.’

[14]On 4 July 2018 the Claimant tested ‘non-negative’ for drugs. He was told of the results immediately and was excused attendance from work, on full pay, pending an independent examination of his urine sample. The Respondent sent the sample for analysis, which was provided by Alere Toxicology (which later changed its name to Abbotts).

[15]The Claimant went to his GP on 6 July 2018 and explained what had happened. He also told her about the events of the past fifteen months. He told the GP that he had never taken illegal drugs of any sort. The GP diagnosed him with depression, prescribed antidepressants and referred him to a mental health clinic. She also suggested that she do some blood and urine tests.

[16]On 11 July 2018, Mr David Amis (Head of Well-Being) was contacted by Alere, which confirmed the presence of cocaine metabolite in the Claimant’s sample. A metabolite is a chemical produced when the body breaks down substances. Alere tested his sample and found that he had a concentration of 470 nanograms of benzoylecgonine per millilitre in his urine. Alere set its testing thresholds so as to rule out the possibility of accidental contamination, passive inhalation or historic drug use. The threshold for cocaine used by Alere was 150 nanograms per millilitre; the level of cocaine in the Claimant’s system represented more than three times that level. The Claimant was suspended from duty.

[17]The results had been reviewed (before 11 July 2018), in accordance with the Respondent’s own policy, by an Independent Medical Review Officer (MRO), Dr Maggie Samuel. Her conclusion was stated briefly in the report: ‘Final Outcome: Positive/Fail – Positive for drugs and/or alcohol This specimen was reported POSITIVE and NOT CONSISTENT with ANY PRESCRIBED OR OVER-THE-COUNTER MEDICATION for at least one substance as listed above. This result should therefore be treated as a FAIL with regard to a Drug and Alcohol Testing Programme.’

[18]We note that at this stage there had been no suggestion by the Claimant that the drug test result might have been caused by a medical condition; he did not discover that he had diabetes/kidney problems until 26 July 2018 (para 21).

[19]On 19 July 2018 Ms Josie Durand (HR) invited the Claimant to an investigatory meeting on 30 July 2018. The Canford drug test

[20]On 25 July 2018, the Claimant arranged to undergo a private hair test with Canford Laboratories, a laboratory accredited by UKAS (the national accreditation body for the UK, appointed by government to assess organisations that provide certification, testing, inspection and calibration services). This also returned a positive result for cocaine. The relevant period, to which the result applied was 21 June to 18 July 2018, which covers the date on which the Claimant took the Respondent’s test.

[21]On 26 July 2018 the Claimant had a discussion with his GP, who told him that he had type II diabetes and that his kidney function was deteriorating. He asked the GP whether his newly-diagnosed medical conditions might have caused a false-positive.

[22]On 28 July 2018, the Claimant’s solicitor, Mr Panton, emailed Ms Yvette McEntee, the Respondent’s solicitor, stating that the Claimant ‘denies knowingly using this prohibited substance’. He also disclosed the fact of the Canford test and the positive result, as well as the recent diagnosis of type II diabetes and renal failure. Mr Panton wrote that the Claimant’s GP had advised that these conditions were ‘likely to have adversely affected the two drug tests... which resulted in a positive find for cocaine’. Mr Panton invited the Respondent to seek medical files held by the GP and asserted that it should be self-evident that the Claimant had ‘no case to answer’.

[23]In fact, on 27 July 2018, the Claimant’s GP had written a ‘To Whom It May Concern’ letter in the following terms: ‘The above named patient of mine undertook a blood test on 18.07.2018 which has shown a new diagnosis of type II diabetes; Mr Headley will now be referred to our diabetic expert programme.’

Law

[24]There was no mention in the letter of any potential link between the positive drugs tests diabetes. The disciplinary investigation interview

[25]On 30 July 2018, Ms Durand interviewed the Claimant. In cross-examination, she denied knowing at that point that the Claimant had issued tribunal proceedings. However, in her report of 3 August 2018, she referred in passing to the fact that the Claimant ‘has a pending tribunal case.’

[26]At the meeting the Claimant raised concerns about the way in which the drugs test had been administered. The Respondent looked into those concerns and was satisfied that there was no impropriety. This matter was not relied on by the Claimant in these proceedings as a ground of unfairness.

[27]The Claimant told Ms Durand about the GP’s opinion, but acknowledged that he did not have a letter from the GP confirming any link between his medical conditions and the drugs test result. He said that he was happy for the Respondent to contact his GP. The Claimant discussed his test results with his GP on 4, 6, 18 and 25 July 2018, yet the GP never confirmed in writing any connection between the diagnoses and the test results. The most the GP did was to provide the letter set out above and the blood test results confirming the diagnosis.

[28]The Claimant also provided a copy of an article dated 3 February 2017, with the title: ‘Can Disease or Illness Show a False Positive on Drug Tests?’ The article suggested that a number of conditions, including kidney disease and diabetes, might give rise to a false positive for a number of drugs, including cocaine. The article went on: ‘That’s not because of medication; the false positive comes from the body chemistry stemming from these diseases and you may not even know you have it …Some people may find out they have a life-threatening illness, such as multiple sclerosis, may after getting [sic] a “false positive” urine drug test simply because there are similar chemicals in the body that test positive for cocaine, opiates and heroin.’

[29]Other than the fact that it was downloaded from the internet, no further information was provided as to the origin of the article; there was no indication as to the status, or qualifications, of the (unnamed) person who wrote it. Further enquiries made by the Respondent

[30]On 30 July 2018, Ms Durand wrote to Mr David Amis (Head of Wellbeing), asking that HML address the questions the Claimant had raised about the testing process, and whether type II diabetes or renal problems could have led to false negative results for cocaine. She included copies of the medical documents the Claimant had provided (the results of the GP’s blood test and the Cransford hair test) and asked that they be placed with his records.

[31]On the same day Ms Durand sent an email to Ms Gibbs (Head of HR): ‘Following an interview today with CM+ Headley, he stated that he had a recent blood test at his GP showed type II diabetes and also renal problems. He had discussed this with his GP in terms of whether any of these conditions could show a false positive test and he stated that his GP had said yes. If possible could you clarify if this would be the case.’

[32]On 2 August 2018, the Claimant’s solicitor sent copies of two links to articles about false positive results to Ms McEntee, who replied that the Respondent’s solicitors were not instructed in the Claimant’s case and that the Claimant was free to submit any evidence he wished to rely on to Ms Durand.

[33]On 3 August 2018, Ms Paula Bailey forwarded Ms Durand’s questions, both about the testing process (about which the Claimant had raised concerns) and the possibility of false negatives to Dr ElNagieb of HML, along with the medical records the Claimant had provided.

[34]On the same day, Ms Gibbs wrote separately to Mr Aaron Brown of Alere, forwarding on the query which Ms Durand had sent to her on 30 July 2018 (para 30), which expressly referred to type II diabetes and renal problems, and asking him to pass it onto the laboratory for a response.

[35]Later the same day Ms Bindi Dodhia, Alere’s Authorising Scientist, replied to the query which Mr Browne had evidently forwarded to her, copying in Ms Gibbs. She wrote: ‘Our urine confirmation testing for cocaine would not give any false positive results. We look for a specific metabolite of cocaine called benzoylecgonine which we would only find if someone had ingested cocaine. If you have the barcode number of the sample handy I can look into it and possibly give you further information.’ The barcode was duly provided to Ms Dodhia

[37]On 3 August 2018 Ms Durand forwarded her ‘subjective report’ to Ms Gibbs of HR. She did not wait for a response from HML before doing so. She considered that, even with the outstanding queries, the case needed to be heard at a Stage 3 disciplinary hearing. In our judgement, that was a reasonable conclusion: even if evidence had emerged to support the Claimant’s defence, it would still need to be assessed by a decision-maker. In any event, no such evidence emerged.

[38]On 8 August 2018 Ms Dodhia wrote to Ms Gibbs and Mr Browne: ‘Sample 65492687 was found to contain Benzoylecgonine at a level of 470 ng/ml. Benzoylecgonine (desmethylcocaine) is the main urinary metabolite of cocaine. The cut-off applied for confirmation is 150 ng/ml. Benzoylecgonine is usually detectable in urine for 2-3 days following cocaine use. There are no medications or medical conditions that would account for the presence of Benzoylecgonine, including the omeprazole medication declared.’

[39]When Ms Dodhia answered these questions, she knew what medical conditions the Claimant was relying on, because they were referred to earlier in the thread. In any event, she was clear that there were no medical conditions which would account for the presence of Benzoylecgonine.

[40]On 9 August 2018 Ms Durand informed the Claimant that she had completed her investigation, and that he was required to attend a disciplinary hearing on 13 September 2018. She invited the Claimant to provide any documents, witness statements and written submissions by five days before the hearing.

[41]The disciplinary charges were as follows: ‘The purpose of this hearing is to discuss your alleged breach of conduct in that: 1. You tested positive for cocaine at your routine periodic medical on 4 July 2018 and that laboratory analysis has confirmed the presence of cocaine metabolite. 2. Therefore, you reported for duty on 4 July 2018 with traces of an illegal drug in your body-system contrary to the Authority’s Alcohol and Drugs Policy (Policy No. 550).’

[42]It was clear that the standards relied on by the Respondent were those set out in the alcohol and drugs policy. Essentially, the Respondent’s case was that, by attending work with cocaine in his system, he was, by definition, unfit for work.

[43]On 14 August 2018, Ms Marie Gerard, Senior Occupational Health Adviser, responded to Ms Bailey’s email of 3 August 2018. She dealt with the issues the Claimant had raised about the testing process, but not the issues about the possibility of a false positive, which she appears to have overlooked. By this point, however, Ms Durand had already received Ms Dodhia’s opinion.

[44]On 24 August 2018, Advanced Nurse Practitioner Bailey of the Claimant’s GP practice (the GP’s daughter) wrote a letter for the Claimant to forward to the Respondent: ‘Thank you for your recent letter in regard to the above-named patient I note that I missed out question 4. I apologise for this and in answer to question 4 I can confirm that at the time of the positive drug test Marcus had also been diagnosed type 2 diabetes and this may have influenced the positive drug test. However, to investigate this possibility further I would recommend seeking expert opinion perhaps through a toxicologist.’

[45]The Claimant did not submit this letter to the Respondent until the disciplinary hearing. Requests for postponement of the disciplinary hearing

[46]On 29 August 2018, the Claimant submitted a fit note, confirming that he was unfit for work because of anxiety and depression. He was signed off until 30 September 2018.

[47]Meanwhile he had been corresponding with an individual online, Mr Greg Moon, whose email address describes him as the ‘flying doctor’. Mr Moon emailed the Claimant on 3 September 2018, the last paragraph of which read: ‘I would also contact Canford to see if the medication and the diabetes could have an affect [sic] on the results.’

[48]The Claimant told the Tribunal that he did not contact Canford because ‘my mental state was all over the place’. The Tribunal asked the Claimant at the end of cross-examination whether he took any steps, at any stage, to get any medical/expert evidence which might have helped him to prove a link between his medical conditions and the drugs test results, either before the disciplinary hearing or before the appeal (by which time the Claimant was ostensibly well enough to attend the hearing). The Claimant said that he had not and that, although he and his solicitor discussed doing so, ‘that was as far as it went’. No medical evidence was led before the Tribunal in support of the existence of a link.

[49]On 6 September 2018, the Claimant emailed Ms Durand and asked for a postponement of the hearing until such time as he was well enough to attend. Ms Durand replied that she would forward the Claimant’s email to the presiding officer (DAC Philpott).

[50]On the same day, the Respondent referred the Claimant to OH, asking whether he was fit to attend the hearing or, if not whether he was well enough to instruct an FBU representative to attend on his behalf.

[51]On 9 September 2018, the Claimant asked for confirmation that the disciplinary hearing would be postponed.

[52]On 10 September 2018, Ms Durand informed the Claimant that she had contacted the presiding manager, DAC Philpott, and that the hearing would be postponed. The Claimant would be informed of a new date in due course.

[53]On 12 September 2018, Dr El-Nagieb of OH advised that the disciplinary hearing be postponed for six to eight weeks. He wrote: ‘Unfortunately he is quite unwell with a combination of significant physical and mental health problems. He has just been commenced on antidepressant medications and referred for psychological counselling. His symptoms are quite significant with anxiety, panic attacks, sleep disturbance and low mood. These are having serious impact on all aspects of his life. It is not only his suspension and the coming investigations, but his wife has been quite unwell with MS and has just been put on a clinical trial. He has also been diagnosed with diabetes two weeks ago and commenced on medications. He was told his kidney functions have significantly deteriorated. His blood pressure has also been very high and he has been put on medications for this as well. Marcus is due to undergo extensive investigations for these physical conditions and his mental state needs to stabilise. He is currently not fit for work. He is not fit to attend any meetings or engage in any discussions at the time. He is not likely to be physically or psychologically well to instruct a representative. I advise any investigations should be put back for 6-8 weeks until his condition is brought under better control.’

[54]Ms Durand wrote to the Claimant on 12 September 2018, acknowledging that the Claimant had asked that the hearing be postponed ‘until such time as you are well enough to attend. Your request was considered by DAC Philpott and your request was agreed’. The hearing was rescheduled for 26 October 2018, which was six weeks after the date on which OH provided its advice.

[55]In the last paragraph of the letter, Ms Durand wrote: ‘Please note, as we normally permit an employee to reschedule the hearing on one occasion, if you are unable to attend the rescheduled hearing, it is likely that the hearing will proceed in your absence. You can submit written representations or liaise with your trade union representative or a work colleague to attend in your absence, if necessary.’

[56]When Ms Durand wrote this letter, she could not know whether the Claimant would be fit enough to attend on that date. On 14 October 2018, Mr Panton asked why the hearing had been rescheduled to 26 October 2018 and why the invitation referred to the hearing proceeding in the Claimant’s absence if the Claimant did not attend.

[57]On 24 October 2018, the Claimant was reviewed by Dr El-Nagieb of OH, who wrote: ‘I am glad to see that he has now engaged with counselling and well-being services and is having regular therapeutic input. He remains under regular review by his GP to monitor his health with regards to his diabetes and blood pressure. He is having monthly blood tests to monitor his kidney function. Marcus remains unfit for work. He requires further stability in his mental health in particular to allow return to work, which I trust with his current medications and therapy can occur in 6-8 weeks period. I have today discussed with him the importance of resolving the work issues with his employer as this is likely to remain a major source of stress for him. I will review Marcus in four weeks.’

[58]On 25 October 2018, Mr David Amis (Head of Well-Being) sought clarification from OH as to when the Claimant would be fit to meet with the Respondent. OH replied: ‘I have discussed with Mr Headley the importance of attending meetings to resolve the work issues. He felt he is not yet fit to do so. I have explained to him and in the medical outcome report that the work issues are going to be a constant source of stress for Mr Headley until resolve[d]. He is however on medications and undergoing counselling and attending such meetings can set his recovery back. I cannot advise when this is likely to change and give you clear timescales as to when he can recover to a degree that allows him to participate in these meetings without effects on his recovery. On the other hand he should be fit to instruct an individual to represent.’

[59]There is no other way of reading this other than that the Claimant was not fit to attend meetings, but was fit to instruct his representative to attend on his part.

[60]On the same day the Claimant asked Ms Durand to confirm that the meeting would not go ahead on 26 October 2018. Later that day, Ms Durand replied that it was not possible to postpone the hearing indefinitely, and that the meeting would go ahead. She told the Claimant that he could submit written representations or liaise with the trade union representative or work colleague to attend in his absence.

[61]Later the same day, the Claimant informed Ms Durand that his colleague/representative, Mr Matthew Hearne, had told him that he could not attend a meeting on 26 October 2018. He asked for the meeting to be rescheduled to 4 p.m. on 1 November 2018. Ms Durand replied that the disciplinary officer would not be available until 7 November 2018 and, if the Claimant was unable to attend on 7 November 2018, the hearing would proceed without him. She advised the Claimant to make other arrangements if Mr Hearne was not available. The grievance

[62]On 29 October 2018, the Claimant raised a grievance about the decision to hold a disciplinary hearing in his absence while he was signed off work and was unfit to attend the meeting. In fact, it was DAC Philpott’s decision not to adjourn the meeting.

[63]On 30 October 2018, Ms Durand informed the Claimant that the issue of whether it was appropriate for the disciplinary hearing to go ahead would be considered on 7 November 2018. The Claimant and his representative should be prepared to deal with the disciplinary hearing in the event that the presiding manager (DAC Philpott) decided that it was. DAC Philpott’s evidence as to why it was appropriate for her to deal with a grievance about that decision was that: ‘I’m just governed by our policies and I think I am capable of reviewing something at the level of a grievance in a fair and open process to determine the outcome.’ The disciplinary hearing

[64]On 7 November 2018, the Claimant attended the disciplinary hearing, chaired by DAC Philpott. He attended alone because the only person he trusted, Mr Hearne, was on leave. He said that he was attending ‘under duress’. That was implicit in the fact that he had raised a grievance about the requirement to attend.

[65]DAC Philpott began by dealing with the Claimant’s grievance. The Claimant initially said that he did not want the grievance to be dealt with on that day. However, DAC Philpott went on to hear it and rejected it. Part of her reason for doing so was as follows: ‘I believe a reasonable adjustment has been applied by delaying this hearing. Today you say you don’t know when you’ll be well enough, but you were also able to instruct a representative. The HML Dr is unable to provide a timescale for your recovery and believes resolving work issues will be beneficial to your health and therefore [t]his can’t be a never-ending cycle.’

[66]She went on to conduct the disciplinary hearing. There was an exchange about the alleged link between the test results and the Claimant’s medical conditions. DAC Philpott observed that the Claimant had provided no further evidence to establish the link.

[67]At the meeting the Claimant said he had no idea how cocaine had entered his system, and queried whether someone might have put it in a drink. He did not identify an occasion when this could have happened.

[68]DAC Philpott gave her decision on the day, which was that the Claimant was summarily dismissed. The dismissal letter

[69]The dismissal letter was sent to the Claimant on 14 November 2018. It dealt firstly with the decision about the grievance: the advice from OH was that the Claimant was not currently fit to attend the stage 3 hearing, and there was no indication as to when he would be fit to do so; the Claimant been advised that he could submit written representations, or arrange for a representative to attend in his absence; the hearing had been rescheduled from 12 September 2018 to 26 October 2018 at the Claimant’s request and rescheduled again from 1 November 2018 to 7 November 2018, because his representative was not available. She concluded: ‘given the serious nature of the disciplinary allegations, I did not consider it appropriate to postpone the stage 3 hearing indefinitely’.

[70]As for the decision to dismiss, DAC Philpott wrote that, on the balance of probabilities, she believed that the Claimant had reported for duty on 4 July 2018 with traces of cocaine in his body, contrary to the alcohol and drugs policy. She concluded that his actions amounted to gross misconduct, and that summary dismissal was the appropriate sanction. His last day of service with the Respondent would be 7 November 2018. She informed him of his right to appeal. The appeal against dismissal

[71]On 19 November 2018, Mr Panton informed Ms Durand that the Claimant wished to appeal against his dismissal on the ground that the sanction was unreasonable and was influenced by his previous complaints of discrimination. Mr Panton asked for copies of the hearing notes, which were provided.

[72]Ms Durand’s involvement in the appeal process ended at this point. The subsequent arrangements for the appeal hearing were dealt with by other members of the HR team.

[73]On 7 December 2018, Assistant Commissioner (AC) Richard Mills invited the Claimant to an appeal hearing on 24 January 2019. The Respondent’s policy provided that the appeal had to be conducted by a manager senior to the dismissing officer, so someone at least of AC Mills’ rank.

[74]On 14 January 2019, the Claimant informed AC Mills that he would be accompanied at the hearing by Mr Hearne. On 22 January 2019, Ms Imogen Wilkes (Employee Relations Assistant) informed the Claimant that the appeal hearing would be postponed because of the ill-health of DAC Philpott.

[75]The Claimant started a new job as a bus driver on 28 January 2019. The first few weeks consisted of training.

[76]On 1 February 2019, Ms Wilkes informed the Claimant that his appeal hearing had been rescheduled to 1 March 2019, some sixteen weeks after the dismissal. She explained that this was the earliest time the relevant people would be available.

[77]On 26 February 2019, the Claimant wrote saying that he would not attend the appeal hearing because of the unreasonable delay. By then he had lost confidence in the process. He asked HR to process him as a leaver, which they did. Findings of fact relevant to contribution, wrongful dismissal and Polkey in Case 3

[78]The unanimous findings of fact set out below are the Tribunal’s own, reached on the balance probabilities, relevant to the issues of whether the Claimant contributed to his dismissal by his own blameworthy conduct (contribution), whether he committed a repudiatory breach of contract, such that the Respondent was entitled to dismiss him without notice (wrongful dismissal) and whether, if the dismissal was tainted by unfairness, there was a chance that the Respondent would have fairly dismissed him in any event (Polkey). There is considerable overlap between the factual issues relating to these three questions.

[79]While it is highly regrettable that the Claimant’s distinguished career in the fire service ended in these circumstances, we must base our findings on the evidence before us, not on speculation. The principal evidence before us consisted of the two positive drug tests for cocaine, one of which the Claimant had commissioned himself, independently of the Respondent. They disclosed levels of cocaine substantially over the respective threshold levels.

[80]The Claimant’s defence to the charge was that the tests were false positives which had been caused by recently diagnosed medical conditions. The evidence led by him to support that the was scant. First there was the suggestion by his GP’s advanced nurse practitioner that there might be a link, and that enquiries should be made of a toxicologist. Then there was the evidence sourced from the internet, including the observations of the ‘flying doctor’, who also suggested consulting a toxicologist; however, there was nothing to show the qualification of the authors of those documents to give authoritative opinions on these matters.

[81]The Claimant was ably represented throughout the internal procedure and these proceedings. At no stage did he or his solicitor seek to secure and provide relevant, authoritative medical evidence which could have made good his case that this was a false positive results caused by diabetes. Instead, he put the onus on to the Respondent to make those enquiries. It is striking that both the advanced nurse practitioner and the ‘flying doctor’ suggested that the enquiries be made of a toxicologist. That is precisely what the Respondent did; the answer they received did not support the Claimant’s defence.

[82]We were satisfied that we could give little weight to the evidence relied on by the Claimant. By far the most probative evidence before us was the evidence of the two positive tests themselves, read together with the confirmatory evidence of Ms Dodhia, a reputable toxicologist, that they could not be accounted for by reference to any medical conditions. There was no medical evidence before us to suggest that the presence of the metabolites in the Claimant’s system, both in his hair and in his urine, was (or even could be) the result of anything other than the ingestion of cocaine.

[83]Insofar as the Claimant has suggested that he might have unknowingly ingested cocaine, he has never given details of when or how this might have happened, let alone in the amounts necessary to give the readings from both sets of test results. It was also submitted on the Claimant’s behalf that it was inherently unlikely that he would take cocaine when he knew he was facing a drugs test soon afterwards; and that his voluntary disclosure of the Canford test showed openness and transparency. Those submissions gave us pause for thought; we accept that a person facing a drugs test would be foolish to take drugs in the period leading up to it; and a person who knew he had taken cocaine might be unlikely to submit to a further test, and then disclose the positive result. We weighed that (purely circumstantial) evidence in the balance, but concluded that it could not outweigh the objective evidence of two positive tests. On the balance of probabilities, we have concluded that the tests were positive because the Claimant had taken cocaine. We are satisfied that a firefighter/temporary watch manager attending work with those levels of cocaine in his system presented an unacceptable level of risk for the Respondent, given the Claimant’s responsibility for his own safety, that of his colleagues and the public. The law The burden of proof

[84]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[85]The effect of these provisions was conveniently summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.1 He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … 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 had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”

[86]In Royal Mail Group v Efobi

[2021] ICR 1263

[2007] ICR 867

, CA Tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense; that whether any positive significance should be attached to the fact that a person had not given evidence depended entirely on the context and particular circumstances. Where it was said that an adverse inference ought to have been drawn from a particular matter, the first step had to be to identify the precise inference which allegedly should have been drawn. Even if the inference is drawn, the question then arises as to whether it would, without more, have enabled the Tribunal properly to conclude that the burden of proof had shifted to the employer.

[87]In Hewage v Grampian Health Board

[2012] ICR 1054

[88]S.27 Equality Act 2010 (‘EqA’) provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

[89]The test of causation in a victimisation complaint is whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as he did (West Yorkshire Police v Khan

[2001] IRLR 830

[90]As with other forms of discrimination, it is sufficient if the protected act was a material influence on the treatment. Unfair dismissal

[91]S.94 Employment Right Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by his employer.

[92]S.98 ERA provides so far as relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— ... (b) relates to the conduct of the employee ... ... (4) ... where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[93]In Orr v Milton Keynes Council

[2011] ICR 704

at [78], Aikens LJ summarised the correct approach to the application of s.98 in misconduct cases: ‘(1) The reason for the dismissal of an employee is a set of facts known to an employer, or it may be a set of beliefs held by him, which causes him to dismiss an employee. (2) An employer cannot rely on facts of which he did not know at the time of the dismissal of an employee to establish that the “real reason” for dismissing the employee was one of those set out in the statute or was of a kind that justified the dismissal of the employee holding the position he did. (3) Once the employer has established before an employment Tribunal that the “real reason” for dismissing the employee is one within what is now section 98(1)(b), ie that it was a “valid reason”, the Tribunal has to decide whether the dismissal was fair or unfair. That requires, first and foremost, the application of the statutory test set out in section 98(4)(a). (4) In applying that subsection, the employment Tribunal must decide on the reasonableness of the employer's decision to dismiss for the ‘real reason’. That involves a consideration, at least in misconduct cases, of three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of; and, thirdly, did the employer have reasonable grounds for that belief.” If the answer to each of those questions is ‘yes’, the employment Tribunal must then decide on the reasonableness of the response of the employer. (5) In doing the exercise set out at (4), the employment Tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found of the particular employee. If it has, then the employer's decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse. (6) The employment Tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The Tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable employer might have adopted’. (7) A particular application of (5) and (6) is that an employment Tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in exceptional circumstances. (8) An employment Tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.’

[94]At (4) above, Aikens LJ was summarising the well-known test in British Homes Stores Ltd v Burchell

[1980] ICR 303

at p.304.

[95]In Turner v East Midlands Trains Ltd

[2013] ICR 525

, Elias LJ (at paras 16–17) cited paragraphs (4) to (8) from that extract in Aikens LJ’s judgment in Orr and added: ‘As that extract makes clear, the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc (trading as Whitbread Medway Inns) v Hall

[2001] ICR 699

; and whether the pre-dismissal investigation was fair and appropriate: see J Sainsbury plc v Hitt

[2003] ICR 111

[96]It is impermissible for a Tribunal to substitute its own findings of fact for those of the decision-maker (London Ambulance Service NHS Trust v Small

[2009] IRLR 563

at [40-43]). Nor is it for the Tribunal to make its own assessment of the credibility of witnesses on the basis of evidence given before it (Linfood Cash and Carry Ltd v Thomson

[1989] ICR 518

). The relevant question is whether an employer acting reasonably and fairly in the circumstances could properly have accepted the facts and opinions which he did.

[97]Even if the dismissal decision falls within the band of reasonable responses, it may still be unfair, if the Respondent has not followed a fair procedure. The Tribunal must evaluate the significance of the procedural failing, because ‘it will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer’s process’ (Sharkey v Lloyds Bank Plc

UKEATS/0005/15/JW

at [26]).

[98]When considering whether the employer acted reasonably, the Tribunal has to look at the question in the round and without regard to a lawyer’s technicalities (Taylor v OCS Group Limited

[2006] ICR 1602

at [48]). This need for a holistic approach has been reiterated in later cases, notably Sharkey v Lloyds Bank Plc

UKEATS/0005/15/JW

and NHS 24 v Pillar

UKEATS/005/16/JW

[99]In Sainsbury v Hitt

[2003] IRLR 23

at paras 30-34, the Court of Appeal held that: ‘The investigation carried out by Sainsbury’s was not for the purposes of determining, as one would in a court of law, whether Mr Hitt was guilty or not guilty of the theft of the razor blades. The purpose of the investigation was to establish whether there were reasonable grounds for the belief that they had formed, from the circumstances in which the razor blades were found in his locker, that there had been misconduct on his part, to which a reasonable response was a decision to dismiss him. … In my judgment, Sainsbury’s were reasonably entitled to conclude, on the basis of such an investigation, that Mr Hitt’s explanation was improbable. The objective standard of the reasonable employer did not require them to carry out yet further investigations of the kind which the majority in the employment Tribunal in their view considered ought to have been carried out. In suggesting further investigations of the kind set out in paragraph 6 of the extended reasons, the majority of the employment Tribunal were, in my judgment, substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. On the decision of this Court in Madden, that is not the correct approach to the question of the reasonableness of an investigation.’

[100]Circumstances will dictate how extensive an investigation is required. In Shrestha v Genesis Housing Association Ltd

[2015] IRLR 399

at [23], the Court of Appeal held (per Richards LJ): ‘To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, the employer must of course consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them in order to meet the Burchell test will depend on the circumstances as a whole.’

[101]In determining whether an employer carried out such investigation as was reasonable in all the circumstances, the relevant circumstances include the gravity of the charges and their potential effects upon the employee (A v B

[2003] IRLR 405

[102]In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the Tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses. The fact that other employers might reasonably have been more lenient is irrelevant (British Leyland (UK) Ltd v Swift

[1981] IRLR 91

[103]The denial of a right of appeal is capable of rendering a dismissal unfair and equally a failure to apply the appeal process fairly and fully may have the same result. If dismissal would be likely to have occurred in any event, then that will affect compensation, but not the finding of unfairness itself (Tarbuck v Sainsbury’s Supermarkets Limited

[2006] IRLR 664

at [80]. Polkey

[104]Where a Tribunal finds that a dismissal was unfair, it must go on to consider the chance that the employment would have terminated in any event, had there been no unfairness (the Polkey issue).

[105]Guidance as to the enquiry the Tribunal must undertake was provided in Whitehead v Robertson Partnership UKEAT [2002] 7 WLUK 539 at [22]. ‘[…] it is, we think, incumbent upon the Employment Tribunal to demonstrate their analysis of the hypothetical question by explaining their conclusions on the following sub-questions: 1. what potentially fair reason for dismissal, if any, might emerge as a result of a proper investigation and disciplinary process. Was it conduct? Was it some other substantial reason, that is a loss of trust and confidence in the employee? Was it capability? 2. depending on the principal reason for any hypothetical future dismissal would dismissal for that reason be fair or unfair? Thus, if conduct is the reason, would or might the Respondent have reasonable grounds for their belief in such misconduct even although the Employment Tribunal found as a fact that misconduct was not made out for the purposes of the contribution argument; alternatively, if for some other substantial reason, was that a sufficient reason for dismissal: similarly, capability. 3. even if a potentially fair dismissal was available to the Respondent, would he in fact have dismissed the Appellant as opposed to imposing some lesser penalty, and if so, would that have ensured the Appellant's continued employment?’ Contribution

[106]S. 123(6) ERA provides, in relation to the compensatory award: Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding

[107]In order for a deduction to be made, the conduct in question must be culpable or blameworthy in the sense that, whether or not it amounted to a breach of contract or tort, it was foolish or perverse or unreasonable in the circumstances (Nelson v BBC (No.2)

[1980] ICR 110

[108]S.122(2) ERA provides, in relation to the basic award: Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce that amount accordingly.

[109]The EAT in Langston v Department for Business, Enterprise and Regulatory Reform, EAT 0534/09 confirmed that the same criteria (‘culpable or blameworthy’) apply to deductions from the basic award.

[110]In Steen v ASP Packaging Ltd

[2014] ICR 56

the EAT held (at [10-18]) that it is for the Tribunal to: 110.1. identify the conduct which is said to give rise to possible contributory fault; 110.2. decide whether that conduct is culpable or blameworthy; 110.3. ask for the purposes of s.123(6) if that blameworthy conduct caused or contributed to the dismissal to any extent. If it did not do so to any extent there can be no reduction on the footing of s.123(6), no matter how blameworthy in other respects the tribunal might think the conduct to have been. If it did cause or contribute to the dismissal to any extent, then the tribunal moves to the next question; 110.4. to what extent the award should be reduced and to what extent it is just and equitable to reduce it; 110.5. a separate question arises in respect of s.122(2), where the tribunal has to ask whether it is just and equitable to reduce the amount of the basic award to any extent. It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award, but it does not have to do so.

[111]A reduction to nil should be an unusual finding. As Langstaff P. put it in Lemonious v Church Commissioners, EAT 0253/12: ‘even if the conduct were wholly responsible for the dismissal, it might still not be just and equitable to reduce compensation to nil. Though there might be cases where conduct is so egregious that that is the case, it calls for a spelling out by the tribunal of its reasons for taking what is undoubtedly a rare course.’

[112]In Allen v Queen Mary University of London, EAT 0265/15, HHJ Richardson held at [26]: ‘… a finding of 100 per cent contribution under section 123(6) is permissible only where the Claimant's conduct was wholly responsible for the dismissal. Even then, it does not follow that the finding must be 100 per cent (see Steen at paragraph 21). But if the Employment Tribunal concludes that the Claimant's conduct was not entirely responsible for the dismissal and that the Respondent shares responsibility for it, then a finding of 100 per cent contribution is not permissible. This question of causation is not to be addressed in a narrow or technical manner. The Employment Tribunal's task is to apply standards of justice and fairness in reaching its conclusion.’

[113]The Court of Appeal in Rao v Civil Aviation Authority

[1994] ICR 495

(at 502F) held that the deduction from the basic award for contribution may not be the same as the deduction from the compensatory award for contribution, if there has already been a deduction by reason of the Tribunal’s conclusion as to the likelihood of the employee remaining in employment (the Polkey issue).

[114]The EAT in Lenlyn UK Ltd v Kular EAT 0108/16 at [81] confirmed that, where there is a significant overlap between the factors taken into account when making a Polkey deduction, and when making a deduction for contributory conduct: ‘the ET should have considered expressly, and did not, whether, in the light of that overlap, it was just and equitable to make a finding of contributory fault, and if so, what its amount should be. That overlap means that there is a real risk, which, I consider again, the ET did not take into account, that the Claimant was being penalised twice for the same conduct. I allow the cross-appeal on this point and remit this case for the ET to consider again, after it has reconsidered the Polkey issue, what deduction, if any, for contributory fault is just and equitable, in the light of that overlap.’

[115]However, the principal of moderating a reduction for contribution in the light of a reduction already made for Polkey cannot apply to the basic award, which is not affected by the Polkey principle: Granchester Construction (Eastern) Ltd v Attrill, EAT 0327/12, per Langstaff P at [19]. Wrongful dismissal

[116]A complaint of wrongful dismissal is a common law action based on breach of contract and is quite different from a statutory complaint of unfair dismissal. The EAT considered the distinction in Enable Care and Home Support Ltd v Pearson EAT 0366/09, where both were claimed. In a wrongful dismissal claim the Tribunal was concerned not with the reasonableness of the employer’s decision to dismiss but with the factual question: was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment, entitling the employer to summarily terminate the contract?

[117]In Neary v Westminster

[1999] IRLR 288

at [33], Lord Jauncey reviewed the authorities on the question of when summary dismissal is justified: ‘What degree of misconduct justifies summary dismissal? I have already referred to the statement by Lord James of Hereford in Clouston & Co Ltd v Corry. That case was applied in Laws v London Chronicle (Indicator Newspapers) Ltd

[1959] 1 WLR 698

, where Lord Evershed MR, at p.700, said: 'It follows that the question must be – if summary dismissal is claimed to be justified – whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.' In Sinclair v Neighbour, Sellers LJ, at p.287F, said: 'The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way – incompatible – with the employment in which he had been engaged as a manager.' Sachs LJ referred to the 'well established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them'. In Lewis v Motorworld Garages Ltd

[1985] IRLR 465

, Glidewell LJ, at 469, 38, stated the question as whether the conduct of the employer 'constituted a breach of the implied obligation of trust and confidence of sufficient gravity to justify the employee in leaving his employment ... and claiming that he had been dismissed.' This test could equally be applied to a breach by an employee. There are no doubt many other cases which could be cited on the matter, but the above four cases demonstrate clearly that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.’

[118]In determining these issues Tribunal may make findings of fact by evaluating the hearsay evidence of the statements gathered in the internal investigation (Hovis Ltd v Louton, EA/2020/000973/LA). In that case, the Judge erred by proceeding on the that, in the absence of direct evidence in person from at least one of the witnesses, she could not make a find that the misconduct had occurred. Injury to feelings

[119]The matters compensated for by an injury to feelings award include subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

[120]In Vento the Court of Appeal gave the following guidance as to the level of awards for injury to feelings: ‘Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. … Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii. The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings. There is, of course, within each band considerable flexibility, allowing Tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.’

[121]The injury to feelings award relates to Case No. 3200756/2018, which was presented on 9 April 2018. For claims presented between 6 April 2018 and 5 April 2019, the Vento bands are as follows: 121.1. lower band: £900 – £8,600; 121.2. middle band: £8,600 - £25,700; 121.3. ipper band: £25,700-£42,900.

[122]Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award. Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation: society has condemned discrimination, and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches (Prison Service v Johnson

[1997] IRLR 162

, EAT at [27]).

[123]The focus of the Tribunal’s assessment must be on the impact of the discrimination on the individual concerned; unlawful discrimination affects different individuals differently (Essa v Lang

[2004] IRLR 313

). Interest

[124]The Tribunal must consider whether to award interest on the sums awarded in a discrimination claim without the need for any application by a party, but an award of interest is not mandatory: reg 2, Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (‘ET(IADC) Regs’).2

[125]Interest is calculated as simple interest accruing from day to day (reg 3(1)). For claims presented on or after 29 July 2013 the relevant interest rate is that specified in s.17 of the Judgments Act 1838: see The Employment Tribunals 2 SI 1006/2803 (Interest on Awards in Discrimination Cases) (Amendment) Regulations 1996.3 The interest rate now to be applied is 8%.

[126]As for the period of calculation, for awards of injury to feelings interest is awarded from the date of the act of discrimination complained of until the date on which the Tribunal calculates the compensation (reg 6(1)(a) ET(IADC) Regs). Conclusions: Case 3 Victimisation: protected act

[127]The Respondent accepts that the Claimant’s grievance of 24 April 2017 was a protected act. Issue 6A: ‘Ms Durand and DAC Philpott refused to postpone C’s disciplinary hearing on 7 November 2019 (R will say the hearing had already been postponed on more than one occasion)’

[128]We have already found that the decision not to postpone the disciplinary hearing on 7 November 2019 was DAC Philpott’s decision alone (para 62). Insofar as the allegation is made against Ms Durand, it fails on its facts.

[129]Turning to DAC Philpott, the Tribunal considers that we are in a position to make a positive finding as to the reason why she refused to postpone the hearing. We accept Ms King’s submission that her sole reason for doing so was because she thought it important to deal with a very serious case of misconduct without further delay.

[130]We cross-checked our conclusions by reference to the burden of proof provisions. The only matter relied on by Mr Panton to raise a prima facie case of victimisation against DAC Philpott was that she was of the same rank as Mr Perez, who had had some involvement in the procedures arising out of the Claimant’s altercation with SM Cook. We agree with Ms King that does not begin to amount to facts from which we could conclude that DAC Philpott did an act of unlawful victimisation. We also had regard to our conclusions (set out below) as to the unreasonableness of the decision not to postpone the hearing. However, it is trite law that unreasonable treatment does not, in itself, suffice to justify an inference of unlawful discrimination to satisfy stage one of the burden of proof provisions. The Tribunal declines to draw an inference from those circumstances that the protected act materially influenced DAC Philpott.

[131]We have concluded that the Claimant has not discharged the burden on him to prove facts from which the Tribunal could reasonably conclude that DAC Philpott’s decision not to postpone the disciplinary hearing was an act of victimisation. Consequently, the burden of proof would not have passed to the Respondent. Issue 6B: ‘DAC Philpott’s decision to dismiss C (R will say C was dismissed because he was found to have failed a drugs test and attended work with traces of cocaine in his system)’ 3 SI 1996/2803

[132]The Tribunal has concluded that the sole reason for DAC Philpott’s decision to dismiss the Claimant was because she believed, on the evidence available to her, that he had attended work with cocaine in his system, and she regarded that as gross misconduct. For the reasons already given, we are not satisfied that the Claimant had proved facts from which we could reasonably conclude that his protected act played any part in DAC Philpott’s decision to dismiss. Issue 6C: ‘Ms Durand failed to ensure that C’s appeal against dismissal took place within a reasonable timeframe (R will say that the appeal was rescheduled due to the ill-health of the disciplinary officer)’

[133]Mr Panton confirmed that the allegation of victimisation in relation to the timing of the appeal was only pursued against Ms Durand. We have already found (para 72) that Ms Durand had no responsibility for the delay in arranging the appeal hearing. This claim fails on its facts. In any event, the only matter relied on by Mr Panton in support of a submission that the burden should shift, was the minor inconsistency in Ms Durand’s evidence about her knowledge of the protected act (para 25). We would not have considered this as sufficient, by itself, to raise a prima facie case of victimisation. Conclusions: unfair dismissal

[134]Dealing first with the reason for the dismissal, we have already rejected the Claimant’s submission that victimisation formed part of the reason for dismissal. We are satisfied that the sole reason was the Claimant’s conduct.

[135]Turning to the investigation, in cross-examination the Claimant accepted that being under the influence of drugs posed a risk to him, to colleagues and the public, he said that he was anti-drugs because he had seen the way in which they impaired people. He had been to road traffic accidents and seen devastating results. In his witness statement (paragraph 159) he acknowledged that ‘the Respondent was not wrong to instigate disciplinary procedures, given that I had tested positive for a banned substance.’

[136]We reminded ourselves that the relevant circumstances included the fact that a dismissal for gross misconduct in these circumstances would have a serious reputational impact on the Claimant. However, the Respondent had the results of two independent tests, which were consistent with each other. When the Claimant suggested a possible link between the results and his diabetes, which may have raised a defence, Ms Durand promptly sought advice, which was provided by a toxicologist, Ms Dodhia, the authorising scientist at Alere. Ms Dodhia unambiguously rejected the possibility of a connection between the results and any medical condition.

[137]Mr Panton argued that the Respondent ought to have further involved the MRO and/or followed through with its attempt to secure a further medical opinion from OH. We reminded ourselves of the warning in Hitt against substituting our own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. We are satisfied that the Respondent acted reasonably in not seeking further medical advice: consulting a specialist toxicologist about the point the Claimant raised was the very course proposed by his GP’s own nurse practitioner (para 44); the fact that Ms Dodhia did not have access to the Claimant’s full medical records is immaterial, since she ruled out a possible connection between the results and any medical condition; the Respondent was entitled to conclude that she, as a specialist, was better placed to advise on this issue than an MRO or an OH practitioner.

[138]Ms Dodhia’s opinion was provided to the Claimant. He could have challenged it by obtaining his own evidence, including but not limited to a letter from his GP, establishing that there was likely to be a link, but he did not do so. Nor did he revert to Canford to seek an opinion from them. Instead he effectively put the onus on the Respondent to make good his defence for him. Mr Panton criticised the Respondent for not approaching the Claimant’s GP directly. Although another employer might have taken that step, we do not think the Respondent acted unreasonably in not doing so, given the unequivocal advice it had received from Ms Dodhia.

[139]We are satisfied that the Respondent’s investigation of the Claimant’s defence fell within the band of reasonable responses. Indeed we are satisfied that the Respondent’s investigation overall was reasonable.

[140]We have no doubt that DAC Philpott believed in the guilt of the Claimant at the material time. She concluded that he had taken cocaine, and had illegal drugs in his system when he attended work on 4 July 2018. This was a clear breach of the alcohol and drugs policy, a critical safety issue and, in her view, gross misconduct. Mr Panton sought to persuade us that there was a qualitative difference between attending with illegal drugs in the system, and attending work obviously impaired by those drugs, we find that the reference in the Respondent’s policy to zero tolerance meant what it said. The Respondent was entitled to conclude that a finding of illegal drugs in the employee’s system was a finding that he was unfit for duty.

[141]We are also satisfied that DAC Philpott had reasonable grounds for her belief in the Claimant’s guilt: he failed two drugs tests, one of which he commissioned himself; he provided no reliable evidence in support of his defence. We are also satisfied that that the sanction of dismissal was reasonably open to her, given the terms of the Respondent’s policies.

[142]However, notwithstanding our conclusions as to the substantive fairness of the dismissal, we consider that there were significant flaws in the Respondent’s disciplinary procedure.

[143]First we considered the fairness of the decision to proceed with the disciplinary hearing, in circumstances where the Respondent’s own OH adviser was clear that the Claimant continued to suffer from serious ill-health. Ms King submitted that the Claimant was ‘unwilling’ to give a date by which he would be well enough to attend the hearing. That is not an accurate statement of the position: the Respondent’s own OH adviser was unable to give a date.

[144]In her letter of 12 September 2018, Ms Durand told the Claimant that his request for a postponement had been considered by Ms Phillpott and agreed. In evidence both Ms Durand and Ms Philpott confirmed that this meant that the rescheduled hearing would only take place when the Claimant was well enough to attend. We accept Mr Panton’s submission that rescheduling the meeting for 26 October 2018 (six weeks later), when OH advice was that the Claimant was unlikely to be fit for between six to eight weeks, was not consistent with that undertaking: Ms Durand simply could not know whether the Claimant would be fit by that date.

[145]The Respondent relied on the fact that the hearing had already been postponed twice, and OH considered that the Claimant was well enough to instruct a representative to attend on his behalf. The Respondent’s policy (para 10) provides that the hearing might go ahead in the employee’s absence ‘if they fail to attend without good reason.’ The Claimant did have good reason. Although the policy also provides that a representative ‘may attend on their behalf’, the language is permissive, rather than mandatory. It is difficult to see how a representative could have represented the Claimant effectively in these circumstances. The positive drugs tests were a matter of record. Absent any medical evidence of his own, the Claimant could only defend himself by his own testimony. A representative could not give evidence on his behalf; he could only make submissions.

[146]There was further unfairness in proceeding with the disciplinary hearing, when the Claimant had raised a grievance, challenging the decision not to adjourn the hearing. That was a decision of DAC Philpott. Her decision to hear that grievance herself at the beginning of the disciplinary hearing gave rise to two obvious, and serious, anomalies: to pursue his grievance, the Claimant had to attend the very meeting which OH had advised he was unfit to attend (which was the basis of the grievance); and, in determining the grievance, DAC Philpott determined the fairness of her own decision. There was an obvious conflict, which is alluded to in the Respondent’s policy at para 67 (para 10 above); no reasonable employer would have concluded that the right person to make that decision was DAC Philpott. We find an echo here of the Respondent’s earlier failure to recognise that SM McCallum should not sit in judgement on a challenge to one of his own decisions (see our judgment on liability at paras 174-183).

[147]The Respondent might have cured the unfairness by holding a timely appeal when the Claimant was well, which he must have been by January 2019 (by then he had started new employment). We accept that the Respondent acted reasonably in scheduling the appeal on 24 January 2019, to enable it to be heard by a senior officer. However, we have concluded that the Respondent acted unreasonably in postponing it from 24 January to 1 March 201. It was not necessary to do so: the Respondent’s own policy (para 10) provided that an appeal could be dealt with by way of a rehearing, which would not have required the involvement of DAC Philpott. The delay to accommodate her health difficulties was all the more unreasonable against the background of the Respondent’s insistence at the dismissal stage that any further delay to the process was unacceptable.

[148]For these reasons, viewed separately and cumulatively, we have concluded that the process followed by the Respondent fell outside the band of reasonable responses, and the dismissal was procedurally unfair. Polkey

[149]We went on to consider what would have happened, had a fair procedure been followed. Given that the Claimant was well enough to begin new employment in January 2019 (and must have been for some weeks before, in order to apply for and secure that employment) we find, on the balance of probabilities, that an adjourned disciplinary hearing would have occurred no later than 9 January 2019.

[150]It was crucial to the Claimant’s defence that he establish a link between the positive drug test results and his newly-discovered medical conditions. Mr Panton’s submission was that the Claimant would have provided authoritative evidence of that link. We disagree. The Claimant still had not obtained that evidence by the time the appeal hearing was postponed. Nor had he obtained it in time for the Tribunal hearing, when it would have been relevant to his wrongful dismissal claim. Indeed, there was no basis on which the Tribunal could reasonably conclude that such evidence exists, let alone that the Claimant would have obtained it by the date of an adjourned disciplinary hearing, or a timely appeal hearing.

[151]We are certain that the position would have remained the same, had the disciplinary hearing been postponed, and a timely appeal convened: the Claimant would not have made good his defence, and the Respondent would have reached the same conclusion. There was a 100% chance that it would have dismissed for gross misconduct on 9 January 2019, and upheld the decision on appeal; that dismissal would have been a fair dismissal for conduct reasons.

[152]Consequently, any compensation for financial loss must be confined to the period of eight weeks between the original dismissal and 9 January 2019, when we have a concluded a fair dismissal would have occurred. Contribution

[153]The conduct which gives rise to the potential for contributory fault is the Claimant’s attendance at work with high levels of cocaine in his system. It follows from our findings of fact above (paras 78-83) that we are satisfied that this amounted to blameworthy conduct. Nor can there be any doubt that the conduct led directly to his dismissal.

[154]We went on to consider the extent to which it would be just and equitable to reduce the compensatory award for contribution, having already reduced it under the Polkey principle. We had regard to the guidance in Rao and Kular and concluded that the conduct which has led us to our Polkey conclusion was the same conduct we are considering through the lens of contribution. We take into account that, if we were further to reduce the (already reduced) compensatory award, the Claimant would be penalised twice for the same conduct. For these reasons we have concluded that it is not just and equitable to reduce the compensatory award to any extent.

[155]The position is different when it comes to the basic award: the Rao and Kular principle does not apply, because Polkey does not apply to the basic award. We have concluded that the Claimant’s conduct was wholly responsible for the dismissal. Notwithstanding this, we reminded ourselves that a 100% reduction is an exceptional finding, and concluded that a 75% reduction would be proportionate and would fairly reflect the Respondent’s procedural failures. Conclusions: wrongful dismissal

[156]In the light of our findings and conclusions above, in particular our finding that the Claimant attended work with cocaine in his system, we are satisfied that his conduct amounted to a repudiatory breach of contract: viewed objectively, it was likely to destroy, or seriously to damage, the relationship of trust and confidence between employer and employee, and the Respondent was entitled to dismiss him without notice. The wrongful dismissal claim must fail. Remedy in Case 2: injury to feelings

[157]The Tribunal found, in its earlier judgment on liability, that two acts of unlawful victimisation occurred: 157.1. the failure by Mr McCallum to recuse himself from hearing the Claimant’s grievance against his decision to issue a performance management plan (which occurred on 24 January 2018); 157.2. the refusal of James Sivell to release information relating to the Claimant following his subject access request in February 2018 (which occurred on 27 March 2018). Findings of fact

[158]The Claimant set out his evidence about the injury to his feelings in a supplementary statement. The Tribunal did not accept everything contained in that statement: it seemed to us that some of the matters he described did not arise directly from the specific acts of victimisation we had upheld, but related to his general dissatisfaction with the matters which had arisen in the first two cases. We focused on those parts of his evidence which we thought flowed specifically from the unlawful acts.

[159]We find that Mr McCallum’s refusal to recuse himself had a significant impact on the Claimant. It undermined his confidence in the organisation, and made him feel that he could no longer rely on it to act fairly and impartially when dealing with his concerns. He felt that he was being stonewalled, and that his legitimate concerns about the fairness of the process were being brushed aside.

[160]As for the refusal to release information to him which he rightly believed he was entitled to, we find that this deepened his sense of mistrust. He felt misled and let down by the organisation, and that he was being deliberately left in the dark. It caused him to be suspicious as to whether his employer was trying to hide something from him. It also caused him to feel insecure around his colleagues. Had he seen the statements they had made about him, he might have been reassured that almost none of them expressed strong criticism of him, indeed most of them had little to say about the altercation in question. Because he could not see them, he could only speculate as to what they had said about him, and we accept his evidence that he feared the worst: that he had gone down in their estimation; that they might no longer trust him; indeed that he might be regarded as someone to avoid. For an experienced professional, who had always been well liked by his colleagues, that must have been a deeply unnerving experience.

[161]The Claimant was already in a state of considerable anxiety before these two acts occurred; we have no doubt that they further deepened that anxiety, which led to a lowering of his mood. He knew this was obvious to his family; that knowledge in turn caused him further distress.

[162]As is often the case, the parties were far apart in their estimation of the appropriate level of the award. Mr Panton argued that each act should attract a separate award of £8,400, i.e. two awards at the bottom of the middle Vento band. Ms King argued that both acts were relatively minor, one-off acts, and that the combined award should be no more than £4000.

[163]We have concluded that the compensation for each act should be in the lower Vento band: they were one-off acts. On the other hand we did not consider either of them to have had minor consequences, and we concluded that each belonged in the in the mid- to upper-range of the lower band. Having regard to our findings above, we concluded that the failure to disclose the statements had the greater impact, in particular on his confidence in his colleagues’ attitude to him. Had they occurred in isolation, we would have awarded £4,000 for the first act and £6,000 for the second. However, we concluded that that would give rise to some double counting, as there was overlap between the impact of the two acts on the Claimant (see in particular para 161). Standing back, and considering the justice of the overall award, we concluded that a global award of £8,600, at the top of the lower band, would be proportionate. For the purposes of the ACAS uplift, we identify £3,440 of that overall award as relating to the first act (to reflect our assessment of the relative impact of the two acts). Interest

[164]The Tribunal has decided to award interest in accordance with the usual principles. We have considered whether a serious injustice would be done to the Respondent by our calculation of interest including the period of delay caused by Covid-19 and/or because the Judgment Act rate of 8% no longer reflects financial reality. The Respondent did not submit that we should alter our approach from the normal calculation of interest in this case. We have concluded that the delay has been one of the uncertainties of litigation, for which the Claimant should not be penalised. For these reasons we award interest at the rate of 8% for the period set out in the Regulations.

[165]To simplify the calculation of interest, we have taken the midpoint between the two acts, which is 21 February 2018.

[166]Simple interest on £8,600 at a rate of 8% from 21 February 2018 to 18 November 2021 (a period of 1,367 days) is £2,580 (1367 ÷ 365 x 8% = 30% x £8,600). ACAS uplift

[167]Ms King accepted that, in the light of our findings on liability about the handling of the grievance, an ACAS uplift would be appropriate. Both she and Mr Panton agreed that it could only apply to the injury to feelings arising out of the McCallum incident (£3,440).

[168]Ms King argued that the uplift should be no more than 10%. She submitted that any uplift should be reduced to reflect the fact that the Claimant withdrew his grievance, instead of meeting and appealing to a more senior decision maker. We reject that submission: it is unrealistic to expect an employee to submit to a process which he (rightly, in our view) regarded as fundamentally unfair from the outset, in the hope that the unfairness might later be cured, especially in circumstances when everything pointed to the fact that the organisation as a whole was blind to the unfairness (see GM Jenkins’ refusal to intervene at para 118 of our judgment on liability), an attitude which persisted up to the Tribunal hearing itself.

[169]In all the circumstances, we considered that the procedural breach was so egregious (it effectively derailed the Claimant’s grievance) that it merited an uplift of 25% (£860). We stood back and considered whether that gave rise to an excessive, or distorted, overall award and concluded that it did not. Remedy calculation in Case 3

[170]We consider that the parties ought to be able to agree the other sums (in Case 3) without the intervention of the Tribunal, and we urge them to cooperate in doing so. If agreement cannot be reached, we propose to deal with any disputes on paper.

[171]The parties must write to the Tribunal within 28 days of the date on which this judgment is sent to them. They must either confirm the agreed sums, in which case the Tribunal will record them in a consent order, or set out an agreed timetable for written submissions. Employment Judge Massarella Date: 23 February 2022 Case No. 3200312/2019 UNFAIR DISMISSAL What was the reason for C’s dismissal?

[2]Was that reason a potentially fair reason? R will rely on conduct.

[3]If the reason was conduct, did R hold a genuine belief that the Claimant had committed the misconduct?

[4]If so, were there reasonable grounds for that belief?

[5]At the time the belief was formed, had R carried out a reasonable investigation?

The hearing

[6]Did R act in a procedurally fair manner? C relies on the following:(a) R’s refusal to adjourn the disciplinary hearing arranged for 7 November 2019 (R admits it did not agree to adjourn the disciplinary hearing, having already adjourned the hearing on two occasions)

(b) R’s failure to hold the appeal hearing in a reasonable time frame (R will say the timing was reasonable in the circumstances of securing the availability of the relevant personnel and the need to reschedule the hearing due to DAC Philpott’s ill health).

[7]Was the sanction of dismissal within the range of reasonable responses?

[8]If the dismissal was unfair:(a) was there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason (Polkey)?

(b) Did C cause or contribute to dismissal by his own blameworthy conduct? WRONGFUL DISMISSAL What was the Claimant’s notice period? Was the Claimant paid for that notice period?

[11]If not, was the Claimant guilty of gross misconduct / did the Claimant do something so serious that the Respondent was entitled to dismiss without notice? VICTIMISATION

[12]R accepts that C’s grievance of 24 April 2017, appeal of 17 July 2017 and employment Tribunal claims 3201597/2017 and 3200756/2018 are protected acts.

[13]Was C subject to the following treatment, in part at least, because C had done one or more of the protected acts: (c) Ms Durand and DAC Philpott refused to postpone C’s disciplinary hearing on 7 November 2019 (R will say the hearing had already been postponed on more than one occasion); (d) DAC Philpott’s decision to dismiss C (R will say C was dismissed because he was found to have failed a drugs test and attended work with traces of cocaine in his system); (e) Ms Durand failed to ensure that C’s appeal against dismissal took place within a reasonable timeframe (R will say that the appeal was rescheduled due to the ill-health of the disciplinary officer).