Mr S Jugroop v London Underground Ltd: 3201619/2017

EMPLOYMENT TRIBUNALS

Case No 3201619/2017

Between

Mr S JugroopClaimant

London Underground LtdRespondent

Before

Employment Judge MS Hallen, sitting alone

Ms B Criddle (instructed by Counsel) for claimant

Miss J Shepherd. Counsel for respondent

Date 31 January 2019

JUDGMENT

[1]The Claimant was substantively and procedurally unfairly dismissed from his employment and the case is listed for a Remedy Hearing on 11 January 2019.

REASONS

[1]The Claimant in his Claim Form submitted to the Tribunal and received on 29 January 2017, asserted that he was unfairly dismissed from his position of Customer Services Supervisor following a period of sickness as a consequence of an assault at work by third parties. The Respondent in its Response Form asserted that the Claimant was fairly dismissed on grounds of medical incapability confirming that he commenced his employment on 26 August 2003 and was dismissed with effect from 14 July 2017. The Claimant had 13 years complete service.

[2]The parties agreed the issues for the Tribunal prior to the Hearing. These issues were as follows:-2.1 Was there a potentially fair reason for the dismissal? The Respondent asserted that the fair reason for dismissal was a reason related to the Claimant’s capability or in the alternative, some other substantial reason of a kind that would justify dismissal of an employee holding the position that the Claimant did, namely that the Claimant’s return to work would potentially put members of the public and colleagues at risk.

2.2 Did the Respondent act reasonably in treating the Claimant’s capability, namely that he was not fit to work because of his anger issues which may potentially put members of the public and work colleagues at risk, as a sufficient reason for dismissing the Claimant in all the circumstances and in accordance with equity and substantial merits of the case?

2.3 Was the dismissal procedurally fair?

[3]The Claimant asserted that the dismissal was procedurally and substantively unfair for the following reasons:-3.1 The Respondent relying on an occupational health report dated 4 July 2017 from a doctor who had not examined the Claimant;

3.2 The Respondent ignoring the Claimant’s assurances that he felt better and was able to control his anger;

3.3 The Respondent taking the decision to dismiss despite the fact that the Claimant had not been examined by occupational health since 20 June 2017;

3.4 The Respondent failing to obtain an up to date medical report from a doctor who had assessed the Claimant prior to dismissal and/or from a doctor who had been made aware of the Claimant’s comments about his anger on 10 and 14 July 2017;

3.5 The Respondent failing to obtain an occupational health review 4 to 6 weeks after 20 June 2017;

3.6 The Respondent giving undue weight to the Claimant’s comments about his anger on 26 June 2017 and not giving weight to his assurances on 10 and 14 July 2017 that he was fit to return to work;

3.7 The dismissing manager expressing an inappropriate non medical view about whether 1 to 2 weeks would make a difference to the Claimant’s recovery at the case conference on 26 June 2017;

3.8 The Respondent failing to note that the Claimant’s prognosis had been improving in the weeks preceding this dismissal;

3.9 The Respondent failing to consider the availability of alternative employment;

3.10 The Respondent failing to consider changing the requirements of the Claimant’s job;

3.11 The Respondent failing to adequately consider the suggestion of temporary alternative duties and providing anger management courses;

3.12 The Respondent failing to take into account the Claimant’s 13 years of service and exemplary attendance;

3.13 The Respondent failing to consider that the Claimant was not known to have used violence in the past;

3.14 The Respondent failing to take into consideration that the cause of the Claimant’s absence was an incident and injury that he suffered during the course of his employment;

3.15 The Respondent failing to assist the Claimant in returning to work;

3.16 The Respondent failing to follow the attendance at work procedure.

[4]If the dismissal was procedurally unfair, would the Claimant have been dismissed in any event and when would this have been?

[5]At the Tribunal Hearing, the Tribunal had in front of it an agreed bundle of documents. The Claimant attended and presented a witness statement as did his union advisor Eamon Lynch, who also attended and prepared a written witness statement. The Respondent called two witnesses, Ms Claudia Borgatti, Area Manager and the dismissing officer and Mr Frank Ibe, Head of Line Operations and appeal officer. Both of these witnesses prepared written witness statements. All of the witnesses gave evidence under oath and were subject to cross examination and questions from the Tribunal.

Facts

[6]The Claimant was employed by the Respondent as a Customer Services Supervisor commencing employment on 26 August 2003 until the termination of his employment on grounds of medical incapability with the effective date of termination being 14 July 2017. Until February 2017, the Claimant had a good attendance record. He also had a clean disciplinary history.

[7]On 15 February 2017, the Claimant was assaulted and racially abused by a number of youths on bicycles, estimated at 15 to 20 while working on the gate line at South Woodford station. The Claimant suffered facial injuries which left him bruised and bleeding and the police were called. This incident came shortly after an earlier incident where the Claimant was also racially abused. The Claimant completed an incident report form which was at page 58 of the bundle of documents, which confirmed the incident of racial abuse on 2 February 2017. In addition, an incident report form was completed in respect of the incident of assault and racial abuse which was at pages 59 and 60 of the bundle of documents. As a result of these incidents, the Claimant suffered from stress related symptoms and was signed off work by his GP on 22 February 2017. The fitness for work certificate completed by the Claimant’s GP was at page 64 of the bundle of documents and referenced stress as the reason for absence. It should be noted that at page 270 of the bundle of documents in respect of the attendance procedure, the Respondent confirmed that certain types of non attendance at work would not normally count towards disciplinary action and assault on duty was referenced as one of those examples.

[8]On 5 April 2017, while the Claimant was signed off work for stress, he attended a case conference with Claudia Borgatti, Area Manager for the Respondent. At the meeting, counselling was arranged for him through London Underground occupational health (LUOH). He was additionally referred to the Drug and Alcohol Assessment and Treatment Service (DAART) regarding his alcohol use as he had mentioned that he had been drinking two or three times per week. The notes of the meeting were at pages 70-72 of the bundle of documents. During this meeting, the Claimant referenced some matrimonial difficulties that he was having but that he was attempting to recover from his illness doing yoga and mediation. He also confirmed that he was feeling well and anticipated a return to work soon. He confirmed that he was taking medication and that he wanted time for that medication to work.

[9]DAART provided an assessment report on 21 April 2017. The report said that the Claimant’s drinking had increased since the incidents at work as the assault on him had caused him considerable distress. However, the Claimant confirmed that he had stopped drinking on 5 April 2017 (the day of the case conference). The DAART assessment report confirmed that the Claimant’s liver function results were normal. The assessment was at page 76 of the bundle of documents. The assessment confirmed that the Claimant had stopped drinking on 5 April, that his liver function results were normal and that he would continue to abstain from drinking in the future. The assessment recommended appropriate counselling services.

[10]While the Claimant was absent from work, unsurprisingly he was angry about what had happened at work as a consequence of the racial abuse that he suffered on 2 February 2017 and the racial assault that occurred on 15 February 2017. He wanted to know why he had been assaulted and wanted an apology from the parents of the children who had attacked and abused him, but the police confirmed that they could not find any of his attackers. As he said to Ms Borgatti, he had had some difficulty with his marriage at this time and had thrown a plate onto the kitchen counter and it fell off and broke on the floor. These events occurred in April and early May 2017.

[11]The Respondent referred the Claimant to Donna O’Connor, a counsellor who worked at Townsend House near to London Underground head office on the Broadway. The Claimant missed the first appointment on 16 May due to being given the wrong time by the Respondent and missed another appointment on 23 May, due to difficulties with public transport. He also missed a third appointment on 5 June due to him feeling unwell. However, he attended the rest of the appointments with Donna O’Connor and found them to be helpful. There was some dispute about the number of appointments the Claimant missed with the counsellor but the Tribunal preferred the evidence of the Claimant and, as noted above, he had missed three for which he had reasonable excuse.

[12]The Claimant was invited to a second case conference meeting by letter dated 8 May 2017 from Ms Borgatti and this meeting eventually took place on 22 May 2017. The notes of this meeting were at pages 81-83 of the bundle of documents. The Claimant attended with Mr Lynch, his trade union representative. During the course of this meeting, the Claimant confirmed that he was still unwell for work but that he was continuing to attend counselling. The Respondent confirmed that it would arrange a further case conference in the future.

[13]Prior to that further case conference, the Claimant was examined on 20 June 2017 by the Respondent’s specialist occupational health doctor, Shahana Jina on 20 June 2017. The health assessment was at page 86 of the bundle. It should be noted that this was the final face to face health assessment conducted with the Claimant by the Respondent’s occupational health doctors prior to his dismissal. In this assessment, Dr Jina confirmed the Claimant’s symptoms had improved although not fully resolved. He was still suffering mild ongoing mood related symptoms, erratic sleep and ongoing difficulties with appetite and concentration. The doctor notably confirmed that the Claimant was fit to return to restricted duties with restrictions applying to critical work, not working alone and not having customer facing duties. She recommended a further assessment in four to six weeks time.

[14]The Claimant went to a further case conference with Ms Borgatti on 26 June 2017. He explained that he was improving but continued to have flashbacks and nightmares. At this conference, temporary alternative duties were discussed. The Claimant described his progress, how the medicine was working but confirmed that he still had concerns about returning to work at that stage. The notes of the meeting were at pages 87-90 of the bundle of documents. The notes mentioned that the Claimant had feelings of anger which had not resolved and that he had been attacking and lashing out at his family. The Claimant disputed saying that he had attacked his family and was angry with his children or that he may act in similar way with colleagues if he returned to work. There was some dispute at the Tribunal Hearing as to the exact words used by the Claimant. The Tribunal believed the Claimant in this respect. The Tribunal noted that the Claimant had been assaulted in the workplace and had been going through significant stress as a consequence of such assault. Although he may have indicated anger and stress related issues during the course of this meeting, the Tribunal found that it was unlikely that he would say that he was attacking and lashing out at his family, especially given the fact that the Claimant had exhibited no issues of violence previously. Both of the Respondent’s witnesses confirmed that the Claimant was a mild mannered individual and that there had been no previous incidents of violence or anger exhibited in the workplace during the relatively long period of the Claimant’s employment. Consequently, the Tribunal found that there was a level of exaggeration of what the Claimant said in the notes presented at pages 87-90 of the bundle of documents. Nevertheless, the Claimant asked for a bit more time before coming back to work, simply a further one to two weeks (page 90) to see if the medication would work and that he would be able to return on a phased basis as recommended by Dr Jina. At this point, Ms Borgatti told the Claimant that the following week the Respondent’s may be considering termination of his employment on medical grounds. She confirmed that she was not sure if one or two weeks would make a difference to the Claimant’s recovery. As a consequence of this, the Claimant became upset and left the meeting prior to the time it was due to end.

[15]Following the case conference, Ms Borgatti sent an email to Dr Illeanna St Claire, another occupational health doctor retained by the Respondent and who was covering for Dr Jina. She attached the notes of the meeting with the Claimant on 26 June 2017. She recounted the incidence of “violent episodes” and asked Dr St Claire whether in her medical opinion, the Claimant would be likely to recover in one or two weeks. If not, she asked what sort of time scale was she looking at and whether it was likely that the Claimant would exhibit violence towards staff in the workplace in the future. This email was at page 91 of the bundle of documents. Pending the receipt of Dr St Claire’s opinion, the Claimant was invited to a further case conference which eventually took place on 10 July 2017. The letter of invitation was at pages 93-94 of the bundle and confirmed that one of the possibilities was that the Claimant could be dismissed upon medical grounds.

[16]On 4 July 2017, Dr St Claire wrote an occupational health assessment which was at page 99 of the bundle of documents. Surprisingly to the Tribunal, this report was written without the doctor examining the Claimant. It appeared that the report was written only upon the basis of the notes of the case conference meeting with the Claimant on 26 June 2017 supplied to the Doctor by Ms. Borgatti. It seemed odd to the Tribunal that the doctor could comment upon what appeared to be alleged “violent episodes” without the benefit of seeing the Claimant to interrogate the details of the notes and get a clear understanding of what the Claimant had to say. Nevertheless, Dr St Claire confirmed that she had reviewed the notes of the consultation with Dr Jina (who had recommended a phased return to work) and then the notes of Ms Borgatti taken on 26 June 2017. On the basis of these two documents, Dr St Claire accepted, without asking the Claimant, that he was not fit to work at the time and suggested more substantial treatment. Her report said that she was unable to provide a timeframe for the Claimant’s recovery.

[17]On 7 July 2017, the Claimant attended a counselling session with Donna O’Connor, Psychotherapeutic Counsellor retained by the Respondent. At this meeting, the Claimant confirmed to Ms O’Connor that he felt fit and well and ready to return to work. Ms O’Connor as his counsellor, advised him to book one last appointment with her so that he could tell her how work had been once he had returned. Nevertheless, despite what the Claimant had said at this meeting, Ms O’Connor wrote an assessment report dated 10 July 2017 (page 105) referencing a conversation with Ms Borgatti and confirming that she had seen the Claimant on 7 July 2017. In the assessment, she confirmed her professional opinion that he was not currently fit to return to duties because of his anger issues although at no point had he expressed to Ms O’Connor an intent to hurt anyone. She also confirmed that he had expressed a desire to return to work to his substantive duties.

[18]The third case conference took place on 10 July with the Claimant in attendance and Mr Pike his union representative supporting him. The Claimant confirmed that he felt fine and apologised for leaving the previous meeting early. At the case conference, the Claimant confirmed that he had attended the counselling session with Ms O’Connor on 7 July and felt fine with any anger related matters not having returned. So much so that he had confirmed to the counsellor that he wished to return to work. For the two weeks preceding the case conference, he confirmed to Ms Borgatti that he felt no anger. His GP had increased the dosage of his medication as he found the previous dose had not worked and this was having some success. He confirmed that he was undertaking yoga and massage and explained that he now wanted to return to work as per Dr Jina’s advice that followed the last face to face examination of the Claimant by the Respondent’s occupational health doctor. The Claimant produced a sick note for four weeks from 27 June 2017 but explained that his GP had said that she had hoped he could return to work before the certificate ran out. The meeting was adjourned for the Respondent to obtain clarification and a report from the counsellor. During the course of this meeting, Ms Borgatti expressed some surprise at the Claimants “miraculous” recovery. To which Mr Pike confirmed that the recovery was not “miraculous” but part of a process that took place gradually over time. This did not surprise the Tribunal given the fact that the Claimant had been assaulted and racially abused which had caused his current sickness absence. In such a situation any recover would take time.

[19]The case conference was reconvened on 14 July 2017, the notes of which were at pages 108 – 112 of the bundle of documents. The Claimant attended this reconvened case conference meeting with Eamon Lynch, his trade union representative and witness at the Tribunal Hearing. Ms Borgatti said that the counsellor’s report dated 7 July 2017 agreed with Dr St Claire’s report of 4 July stating that the Claimant was not currently fit for work. The Claimant argued that he was fit and wanted to return to work. Mr Lynch, the Claimant’s union representative confirmed that although the Claimant’s GP had signed him off work for four weeks, the Claimant did not need that period of time to recover. Mr Lynch suggested temporary alternative duties and an anger management course would be a reasonable option at that stage. This option was rejected by the Respondent because it said that he had only attended 50% of his counselling sessions. Instead, Ms Borgatti took the decision to dismiss the Claimant on grounds of medical capability. It should be noted that this decision was taken despite the Claimant confirming that he would shortly be fit to return to work and that the last medical assessment conducted on a face to face basis by the Respondent’s occupational health doctor (Dr Jina) on 20 June 2017, had confirmed that the Claimant could return to restricted duties (page 86). It should also be noted that the decision to terminate on grounds of medical capability was taken by the Respondent on the basis of Dr St Claire’s assessment which had been undertaken without a face to face medical assessment with the Claimant or a serious consideration of what he allegedly said to Ms Borgatti on 26 June 2017 or in fact if he really posed a threat to anyone.

[20]The outcome letter dated 20 July 2017 which was at pages 115-119 of the bundle of documents, relied upon the report from Dr St Claire dated 4 July 2017 even though the Claimant had not been examined by Dr St Claire. It ignored the Claimant’s request to return to work and dismissed his comments about being able to control himself. Instead, the letter said that the Claimant was dismissed due to the weight of evidence against him on the question of anger, as expressed at the meeting on 26 June. The question of redeployment was also ruled out for this reason as well. The Claimant was given the right of appeal against Ms Borgatti’s decision to dismiss him as well as being given the right of appeal against the medical evidence to the Head of Occupational Health. Pursuant to its procedures, the Respondent has a two stage appeal process. The first stage was an appeal against the substantive decision to terminate the employment by the dismissing officer. In addition, if the appeal was on the grounds of medical evidence, the senior manager is required to consult with the Head of London Underground Occupational Health in respect of the medical evidence that was used to determine the Claimant was unfit for work. This two stage procedure was at page 286 of the bundle of documents.

[21]The Claimant by way of his union representative Eamon Lynch, submitted an appeal dated 20 July 2017 against both Ms Borgatti’s substantive decision to terminate the Claimant’s employment for medical incapacity as well as on the basis of the advice that was given by Dr St Claire, in the absence of examining the Claimant. In support of his appeal, the Claimant produced a witness statement from his wife which was at page 120 of the bundle of documents. In this statement Mrs Jugroop confirmed that the Claimant was fit and well to return to work since June 2017. She confirmed that his problems were as a consequence of the racial abuse and attack at work which had caused his sickness absence and she assured the Respondent that he was not a violent person. In any event, this was not disputed by the Respondent as it produced no evidence to show to the Tribunal that the Claimant had exhibited violence in the workplace previously. In addition, the Claimant adduced a letter from a GP, Dr Orekoya which was at page 121 of the bundle of documents and dated 25 July 2017. It confirmed, “Today I have reviewed him. Well dressed and groomed. Good eye contact. Feels well in himself. ……he was in normal mood. …..he has insight into his problems. There are no thoughts of self harm. ….in my view of today’s presentation and the records available to me, I believe. is fit to resume work”.

[22]In addition to Mr. Lynch’s email of appeal of 20 July 2017, the Claimant sent an email dated 14 July 2017 (pages 113-114) to the appeal officer Frank Ibe confirming his grounds of appeal as follows:- Abusive Procedures Disregard of relevant information Failure to support employee Failure to offer reasonable counselling services

[23]The Respondent understood that there would be two levels of appeal. The first level would challenge the medical evidence, particularly the report of Dr St Claire which was prepared in the absence of an examination of the Claimant by her after reviewing the disputed case conference notes prepared by Ms Borgatti of 26 June 2017. This understanding was supported by the letter of dismissal, especially at page 119 in which Ms Borgatti confirmed “If the basis for the appeal is that you are currently fit to perform the full duties of Customer Service Supervisor your appeal will be referred to the Head of Occupational Health, together with any supporting medical evidence you provide”. It is further supported by the Respondent’s own procedures at page 286 which confirmed “If the appeal is on the grounds of medical evidence, the senior manager will then consult with the Head of London Underground Occupational Health”. As confirmed by Mr Ibe at the Tribunal Hearing, this part of the appeal did not happen. Instead, what did happen was that Dr St Claire, the same doctor that had advised Ms Borgatti on the Claimant’s medical health without examining him, had been provided with the Claimant’s medical appeal to which she responded by letter dated 14 August 2017 (pages 184-185 of the bundle). The Tribunal was surprised to note that this assessment was again undertaken by Dr St Claire without examining the Claimant. It seemed odd to the Tribunal that such a medical assessment and conclusions could be drawn by Dr St Claire without such examination. Furthermore, it is clear that Dr St Claire had been forwarded the Claimant’s doctor’s note dated 25 July 2017 which confirmed that the Claimant was fit to return to work at least at that date. What Dr St Claire does say is that as a consequence of the Claimant’s GP assessment confirming that he was fit to return to work as at the date of the appeal “If the management would wish further advice from occupational health then this should not be handled through the appeal process any longer but, as per guidance of the appeal, it should be handled as a new assessment. If that is the way the business wants to pursue then it would be beneficial, to start with, that a report from a GP or any specialist that you have seen in the meantime or since is obtained.” Mr Ibe, the appeal officer, despite Dr St Claire’s recommendation and the fact of the Claimant’s own GP saying he was fit to return to work, did not action any further medical assessment to take place. At the Tribunal Hearing Mr Ibe confirmed that he had no medical expertise and could make no such assessment of the Claimant’s fitness to return to work in the absence of any further medical assessment in that regard. Mr Ibe also confirmed that in apparent breach of the Respondent’s procedures (page 286), where the medical evidence of Dr St Claire had been challenged by the Claimant, the Head of London Underground Occupational Health had not been consulted.

[24]The Claimant’s appeal was not heard until 27 September 2017, some two and a half months after he lodged it. He was accompanied at the appeal by his trade union advisor Mr Lynch. At the appeal, the Claimant explained that although his last fit note was due to run until after 14 July, he was able to return to work before it expired. He also confirmed that the Respondent should have considered redeployment rather than dismissing the Claimant on 14 July as well as pointing out his objections to the meeting notes of 26 June 2017. He explained to Mr Ibe that he denied that he was out of control or that he had said that he had attacked his family. He explained that he was well enough to return to work on 29 June 2017 and Mr Lynch explained that the Respondent had used the worst items in the note of 26 June to dismiss the Claimant. Furthermore, he confirmed that the Respondent took no account of the fact that the Claimant had been assaulted and abused by a gang of youths which was the cause of the Claimant’s illness. Mr Lynch confirmed that the Claimant was suffering from post traumatic stress disorder and that the Claimant was not a violent or aggressive character. The Claimant and his representative challenged the idea that he was a danger to colleagues and to the public and that if the Respondent seriously believed that the Claimant was so, then an alternative suggestion would be an anger management course rather than dismissal on 14 July. At the conclusion of the appeal meeting, the Claimant confirmed that he was able to return to work and felt able to do so. Mr Ibe adjourned the meeting and subsequently wrote to the Claimant by letter dated 15 November 2017 which was at pages 254-262 of the bundle of documents. The outcome letter rejected every point of appeal brought by the Claimant. The outcome letter confirmed that the Claimant had been absent from work for a long time and that there was no date for his return despite the fact that at the date of the appeal, the Respondent had the letter from the Claimant’s own GP dated 25 July 2017 (page 121) saying that he was fit to resume work. The second part of Mr Ibe’s letter commencing at page 260, dealt with the Claimant’s main reason for dismissal by rejecting all of his comments about his recovery and insisting that the Claimant was a danger to colleagues and the public. It seemed strange to the Tribunal that Mr Ibe being a non medically qualified person could come to any reasoned conclusion about the Claimant’s danger to himself, his family or the public. Indeed, at page 262, he says “It is difficult for me to form a clear view of your mental health and readiness to work”....... I did consider whether or not it was appropriate for me to refer you to OH. At our meeting you had not had any further treatment nor did you advise me that any was planned. Instead you said you were fully recovered and ready to return to work”. It seemed to the Tribunal that any reasonable appeal officer given his professed difficulty in coming to any medical assessment would have instigated further medical assessment before coming to a decision on the appeal to ascertain whether the Claimant could indeed come back to work, which is what he and his GP were saying. Instead, Mr Ibe did not do this and dismissed the Claimant’s appeal.

Law

[25]The Tribunal had to ascertain whether the reason for dismissal fell within section 98(1) of the Employment Rights Act 1996 (ERA) and whether the Respondent had shown the dismissal was by reason of the Claimant’s capability and/or some other substantial reason that justified the dismissal of the Claimant in the position that he held.

[26]If the Respondent could show that the reason for dismissal was capability and/or some other substantial reason and a potentially fair reason for dismissal, the Tribunal had to decide if the employer acted reasonably or not in dismissing for that/those reasons. The statutory test for fairness is set out at section 98(4) of the ERA;- “The determination of the question whether the dismissal was fair or unfair, having regard to the reasons shown by the employer depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating as sufficient reason for dismissing the employee and ……shall be determined in accordance with equity and the substantial merits of the case.”

[27]In DB Schenker Rail (UK) Limited v Doolan (2010) UKEAT-0053-09, the EAT observed that in respect of ill health capability dismissals the Respondent must show:-27.1 It had a genuine belief that ill health capability was the reason for dismissal;

27.2 It had reasonable grounds for its belief;

27.3 It carried out a reasonable investigation.

[28]Where an employee has been absent long term, the Tribunal must also consider whether the employer can be expected to wait longer for the employee to return (Spencer v Paragon Wallpapers Limited

(1977) ICR301

). Further, in the case of East Lyndsey District Council v Daubney it was held that it was not a function of employers or Employment Tribunals to act as medical appeal tribunals to review advice received from medical advisers, the decision whether or not to dismiss an employee was not a medical question but had to be taken by employers in the light of available medical evidence which should be requested in such a way as to enable them to make an informed decision so that the employer can discover the true medical position.

[29]In the case of BS v Dundee City Council (2013) CSIH91 as applied in Monmouthshire County Council v Harris (2015)

UKEAT/0010/15

indicated that the following factors may be relevant in how long an employer may be expected to wait:-29.1 The likely length of absence;

29.2 The fact that the employee has exhausted sick pay;

29.3 The cost of continuing to employ the employee, the size of the employee and the size of the employing organisation.

[30]Finally, in the recent case of O’Brien v Bolton Saint Catherine’s Academy

(2017) EWCA CIV 145

it was held that where the position had changed between the dismissal and the appeal hearing as a result of developments in the medical condition itself in considering the proportionality of a dismissal decision, it was disproportionate and unreasonable for the school to disregard medical evidence that confirmed the employee was fit to return to work without at least further assessment by its own occupational health advisers. Tribunal Conclusions

[31]In this case, the Tribunal was satisfied that the reason for dismissal fell within section 98 (1) of the ERA and that the Respondent has adduced sufficient evidence to show that the dismissal was by reason of the Claimant’s capability. As a consequence of suffering facial injuries following racial abuse and assault on 15 February 2017, the Claimant was signed off work on 22 February 2017 and by the time of his dismissal on 14 July 2017 the Claimant remained incapable of undertaking his duties by reason of ill health.

[32]However, the Tribunal was of the view that the Claimant had been substantively unfairly dismissed by reason of his ill health. The Claimant had nearly 14 years of continuous service with the Respondent at the time of his dismissal and the Tribunal accepted his evidence that he had no long term sickness issues prior to this nor did he have any disciplinary issues on his record. The Respondent’s attendance procedure at page 270 of the bundle of documents required the Respondent to take a sympathetic attitude towards sickness absence, especially if it was due to an assault whilst an employee was on duty, as was the case in this instance. In addition, at page 271 of the bundle of documents which was an extract of the Respondent’s attendance procedure, it stated “an employees service will not be terminated until a minimum of 39 weeks have elapsed from the time he/she first became unable to carry out his/her job for medical reasons.” This section is a section that related to suitable alternative employment and clearly contemplated a lengthy period of continuous sickness absence. In this case, the Claimant’s dismissal was progressed reasonably rapidly pursuant to the Respondent’s attendance procedure in the absence of due consideration for the reasons for the Claimant’s absence (racial abuse/assault at work) and without giving the Claimant a reasonable opportunity to recover, especially given the timeframes specified at page 271 of the attendance procedure which contemplated an absence of up to 39 weeks. In this case, the Claimant’s employment was terminated within 5 months of his sickness absence. The Respondent produced no evidence to show that the costs of the Claimant’s absence was causing it undue stress nor any evidence to show that it could not wait longer for the Claimant to recover especially in the light of the time period mentioned above in it own procedures. This did not surprise the Tribunal given the fact that London Underground is a substantial employer and could very likely absorb the cost of the Claimant’s sickness absence, especially given the cause of such absence.

[33]In addition, at the time of the Claimant’s dismissal by Ms Borgatti on 14 July 2017, the Claimant had only been examined once by the Respondent’s occupational health advisers, namely by Dr S Jina on 20 June 2017. Her assessment was at page 86 of the bundle of documents and at that time she recommended that the Claimant was fit to return to work on restricted duties. However, at a case conference which took place on 26 June 2017, the dismissing officer Ms Borgatti in the Tribunal’s mind, took comments made by the Claimant about his anger issues out of context and conflated them and gave them a significance which they did not warrant. It was clear from the evidence heard at the Tribunal that the Claimant had no past history of violence or anger in the workplace nor had he been violent towards customers or staff of the Respondent in the past. Given this knowledge, it seemed to the Tribunal that Ms Borgatti should have been highly critical of any such comments made by the Claimant especially given the fact that he had recently been the victim of assault and racial abuse, was suffering from stress and anxiety and was under the effects of medication. However she did not apply the necessary caution that a reasonable dismissing officer would in the Tribunal’s mind have applied given the facts at her fingertips at the relevant time. Instead, she referred the notes of the meeting of 26 June 2017 (pages 87-90) onto another occupational health physician who was covering for Dr Jina who had conducted the last face to face examination. What was surprising to the Tribunal was that Dr St Claire could come to the conclusions that she came to at page 99 of the bundle of documents without conducting any face to face examination with the Claimant. It seemed that Dr St Claire took what the Claimant had allegedly said at the meeting on 26 June 2017 at face value, stating “I understand that Mr Jugroop is at present reporting outbursts of anger. That, of course in a work situation, would potentially put members of the public at risk if he is to return to a customer facing role or his colleagues even if he returns to a non customer facing role.” These conclusions were reached by Dr St Claire without examining the Claimant and were entirely different to those of Dr Jina who examined him on 20 June and confirmed that he was fit to return to work on restricted duties. The Respondent in such circumstances to clear up this ambiguity could not have held a reasonable belief in the absence of such further medical assessment as it could not be properly aware of the true medical circumstances. In addition, as of the date of the case conference on 10 July and the subsequent reconvened conference on 14 July, the Claimant was adamant that he would be fit and well to return to work within two to three weeks further absence. He confirmed that he was making progress and would like a short further period of time to fully recover. It seemed to the Tribunal that the Claimant was being painfully honest to the Respondent and was taking a cautious approach. Furthermore, Ms Borgatti gave evidence to the Tribunal that she did not disbelieve the Claimant’s assertions that he was recovering and was very likely to be in a position to return to work shortly. She also confirmed that the Claimant had not been violent in the workplace and that the only reference to violence that had occurred was that which occurred on 26 June at the case conference. This, the Claimant disputed specifying that the Respondent had given it significance to which it did not deserve. It was also clear to the Tribunal that Ms Borgatti did not seriously consider any other alternatives that were open to her such as redeployment or temporary alternative duties. Furthermore, she failed to consider Mr Lynch’s suggestions that the Claimant should be provided with anger management counselling if that was a serious concern for the Respondent and it truly believed that he was a danger to staff or customers. The Tribunal came to the conclusion that given the above serious irregularities the Respondent did not carry out a reasonable investigation before dismissing the Claimant and therefore could not come to an informed decision on the true medical position. Furthermore, reasonable alternatives to dismissal were not considered by the dismissing officer even though these were open to the Respondent and the reasons for not considering them were not convincing to the Tribunal. These alternatives including waiting longer for the Claimant to recover, considering a phased return to work, considering temporary alternative duties and considering suitable alternative employment. For these reasons, the Tribunal came to the conclusion that Ms Borgatti’s dismissal of the Claimant was substantively and procedurally unfair.

[34]The Respondent did not conduct a fair appeal process in respect of the Claimant’s appeal. It was clear to the Tribunal that the Claimant was appealing against the substantive decision to terminate his employment by Ms Borgatti as well as appealing against the medical decision made by Dr St Claire. The Respondent’s appeal procedures at page 286 of the bundle of documents gave employees a two stage right of appeal. Firstly in respect of the substantive decision to terminate by way of the dismissing officer and secondly, if the appeal was also on the grounds of medical evidence, the senior manager was required to consult with the Head of London Underground Occupational Health. This was reiterated by Ms Borgatti in a letter of dismissal at page 119 where she confirmed “If the basis for the appeal is that you are currently fit to perform the full duties of Customer Service Supervisor you appeal will be referred to the Head of Occupational Health, together with any supporting medical evidence you provide.” It was clear to the Tribunal that pursuant to the email from Mr Lynch at page 128 of the bundle of documents that the Claimant was appealing against the advice of Dr St Claire. No evidence was produced by the Respondent to confirm that the Head of London Underground Occupational Health had been consulted or that an appeal had been conducted by him or her. What does seem to have occurred was that the Claimant’s medical appeal was again referred to Dr St Claire (the original decision maker) who essentially reconfirmed by way of her letter at page 184 and 185 of the bundle of documents (24 August 2017) the original decision provided to Ms Borgatti on 4 July 2017 (page 99). The Tribunal did not consider this to be a fair medical appeal as it was the same occupational health doctor that was reconfirming a decision that she had already earlier made. It should be borne in mind that Dr. St. Claire came to her conclusions without examining the Claimant on both occasions. In the Tribunal’s mind, a fair appeal if it was being conducted reasonably would have been undertaken by a new and independent occupational health doctor at the instigation of the Head of the Respondent’s occupational health department as was allowed for in the Respondent’s own procedures. This did not occur and there appears to be no reasonable explanation for this failure.

[35]The substantive appeal against Ms Borgatti’s decision to dismiss the Claimant was conducted by Mr Frank Ibe and the Tribunal came to the conclusion that this was not a fair substantive appeal of Ms. Borgatti’s decision to dismiss. In spite of the criticisms that the Tribunal has had of Dr St Claire reviewing her own decision, she did say dated 24 August 2017, “If the management would wish further advice from occupational health then this should not be handled through the appeal process any longer but, as per guidance of the appeal, it should be handled as a new assessment. If that is the way the business wants to pursue then it would be beneficial, to start with, that a report from a GP or any specialist that you have seen in the meantime or since is obtained.” This was Dr St Claire’s response to the Claimant’s medical report of 25 July 2017 (page 121) which confirmed that he was fit to resume work. Given both of these recommendations, one from the Claimant’s GP and the other one from the Respondent’s own occupational health adviser, the Tribunal was surprised to note that Mr Ibe was still confused as to what he should do. It seemed obvious to the Tribunal that a reasonable appeal officer in these circumstances would have referred the matter onto an independent and senior occupational health adviser to ascertain the fitness of the Claimant to return to work as of the date of the appeal. Indeed, Mr Ibe in his appeal dismissal letter says the following at page 262 “It is difficult for me to form a clear view on your mental health and readiness to return to work”....... I did consider whether or not it was appropriate for me to refer you to OH. …..and the medical prognosis available to me I do not think that a referral to OH would achieve anything because nothing has really changed since your final meeting with Ms Borgatti.” The Tribunal was at a loss to see how Mr Ibe could have come to this conclusion especially given the fact that the Claimant had long been saying he was fit to return to work, his GP had provided a report to say that he was fit to return to work and Dr St Claire in her letter of 24 August 2017 also made a similar recommendation. It seemed to the Tribunal that the only reasonable course of action for Mr Ibe was to accept the available medical evidence, allow the appeal and permit the Claimant to return to work on a phased return to work basis or take further independent occupational health advice to assess the Claimant’s abilities to return to work on a phased return to work basis. Mr Ibe did neither of these and therefore the Tribunal concluded that the appeal was substantively and procedurally unfair.

[36]For the above reasons the Claimant was unfairly dismissed. The Tribunal after consultation with the respective parties fixed the Remedy Hearing for 11 January 2019. The Tribunal noted that the bundle of documents prepared for the Hearing had at its final section, Remedy and Mitigation and that the Claimant had produced a Schedule of Loss. The Tribunal also noted that the Claimant had partially mitigated his losses by obtaining employment as a bus driver with Stagecoach on 11 November 2017. As a consequence, the Tribunal gives no further directions in respect of preparation for the Remedy Hearing and leaves it to the respective solicitors to agree appropriate directions for such Remedy Hearing and in the hope that this matter can be settled without recourse for such Hearing by way of ACAS or other mediation routes open to the parties.

Background

[1]By reason of a reserved judgment sent to the parties on 28 September 2018, the Tribunal had adjudged that the Claimant was substantively and procedurally unfairly dismissed from his employment and the case was listed for a remedy hearing on 11 January 2019.

[2]At the hearing on 11 January 2019, the Claimant indicated to the Tribunal that he wished to be reinstated which remedy he sought in his claim form at paragraph 24 in the grounds in support where he confirmed that he sought reinstatement for unfair dismissal. In respect of today’s hearing, the parties agreed that the issue for the remedies hearing on 11 January 2019 was to determine the question of whether it was practicable for the Respondent to comply with an order for reinstatement given the fact that the Claimant wished to be reinstated and that there was no determination in respect of the liability judgment that the Claimant had caused or contributed to his dismissal. The Respondent asserted that it was not reasonably practicable for the Claimant to be reinstated to his substantive position of Customer Service Supervisor 2 (CSS2) in respect of his contract of employment with London Underground Limited within any of its station within the London network. The reason for this was because the Respondent argued that there was a breakdown in trust and confidence due to: -2.1 The Claimant sharing the written judgment of the Employment Tribunal with another member of staff within London Underground Limited not involved in the Tribunal proceedings, attaching a copy of the judgment and stating that Ms Borjatti (dismissing officer) unfairly dismissing him. The Respondent asserted that the sharing of the judgment demonstrated that the Claimant was unable to put the process behind him and the Respondent would be concerned about the impact this would have on the business going forward.

2.2 The Respondent was aware that since leaving the employment of London Underground Limited, the Claimant had been employed by Stagecoach as a bus driver and that his employment was summarily terminated by Stagecoach on 6 December 2018. The Respondent asserted that the Claimant had misled the Respondent and in the Tribunal in failing to be open about the circumstances surrounding his dismissal from Stagecoach which the Respondent asserted was for misconduct in his failure to follow accidents reporting procedures. It was asserted by the Respondent that this misconduct was a safety critical issue and meant that the Respondent lost trust and confidence in the Claimant.

[3]The Tribunal had to determine whether it was reasonably practicable for the Respondent to comply with an Order for reinstatement on the basis of the alleged breach of trust and confidence as asserted by the Respondent. In this regard, the Tribunal had in mind the test set out by JJH Eady in the case of United Lincolnshire Hospitals NHS Foundations Trust v Farren

[2017] ICR 513

. In this case, HHJ Eady stated that it was the employer’s view of trust and confidence (appropriately tested by the Tribunal as to whether it was genuine and found it on a rational basis) that matters, not the Tribunal’s view. Relevant factors may include:-3.1 Whether the parties were able to trust each other;

3.2 Whether the nature of the allegations made it impossible for the employee and the subjects of the allegations to work together again;

3.3 Whether the industrial atmosphere had been poisoned against the employee and may lead to strife.

[4]The Tribunal had in front of it an agreed bundle of documents made up of 445 pages albeit the relevant documents referred to the Tribunal were less than 20. In addition, the Tribunal had witness statements from the Claimant and his witness, Mr Eamon Lynch, and RMT Level 2 representative negotiator. In addition, the Respondent produced a witness statement from Sheila Fearon-McCaulsky employed as a senior people management advice manager with the Respondent.

Facts

[5]The Claimant was born on 12 July 1972 and commenced work with the Respondent on 1 August 2003 and was dismissed on 14 July 2017. He was employed as Customer Service Supervisor 2 (CSS2) in the Leytonstone and Mile End Group of underground station on the central line and up to the termination of his employment he had a clean disciplinary record. The Respondent prior to the Claimant dismissal had no concerns about the Claimant’s honesty, integrity or reliability. The Claimant’s confirmation of appointment to the position of CSS2 was at page 287 of the bundle of documents and the Claimant confirmed that this role related to all such positions within the London Underground Limited network.

[6]Following the Claimant’s dismissal by the Respondent on 14 July 2017, the Claimant was offered the position of bus driver by Stagecoach which was a company owned by East London Bus and Coach Company Limited and he was based at the Leyton Depot. The Claimant was paid less in respect of this role than the income he received with the Respondent and the pension terms were inferior. Nevertheless, in order to regain an income, the Claimant accepted work and commenced a probation period of one year with the new employer on 6 November 2017.

[7]While working for Stagecoach, the Claimant was involved in a few minor accidents which did not involved injury to anyone. He received warnings for these infractions from Stagecoach. In November 2018 he was told to take a driving retest by Stagecoach or face dismissal from his employment with them. He took the retest but failed this and due to his previous warnings in respect of prior accidents, his employment was terminated. As part of these proceedings, the Claimant disclosed documentation contained at pages 436 -445 of the bundle of documents that was personal to his dismissal from Stagecoach. At page 437 of the bundle was a letter dated 26 November 2018 to the Claimant scheduling a disciplinary hearing for 3 December 2018 to consider matters which Stagecoach deemed to be very serious in nature. It was asserted “under the company’s policies and procedures I am obliged to inform you that should the charge be found proven and due to existing live formal disciplinary sanctions the range of penalties open to the Chair of this hearing include dismissal/summary dismissal. If you have any further information that you feel the Chair should be aware of before a decision is made, you should provide the information as soon as possible.” The charges in respect of the disciplinary hearing were poor driving standards in respect of damage to a mirror on the Claimant’s bus on 16 November 2018, the Claimant’s failure to report the accident contrary to the Stagecoach’s reporting procedures and the running late of the bus on 17 November 2018. As a consequence of the disciplinary hearing held on 3 December 2018, the Claimant was on 6 December 2018 dismissed from his position as a driver with Stagecoach. At the Tribunal hearing, the Respondent asserted that the Claimant’s failure to provide full discovery of his dismissal from Stagecoach for what amounted to a summary dismissal was a breach of trust and confidence and that the Respondent could no longer trust the Claimant if the Tribunal deemed it practicable for the Claimant to be reinstated into the position of CSS2. However, the evidence presented by the Respondent’s witness as to the alleged breach of trust and confidence was not persuasive. At the time the Respondent’s witnesses drafted her witness statement she could only state “he was summarily dismissed from Stagecoach on 6 December 2018. A copy of the formal leaving notice from Stagecoach can be seen at page 433 of the bundle”. The witness could not give any evidence over and above this assertion and could not further elucidate upon whether the parties were able to trust each other in respect of the termination of employment by Stagecoach of the Claimant. Furthermore, she could not adduce any evidence as to whether the nature of the allegations made it impossible for the parties to work together again nor did she go as far as to assert that the industrial atmosphere had been poisoned against the employee and would lead to strife in respect of the Claimant’s termination of his employment from Stagecoach. It was asserted that the CSS2 position was safety critical as was the role of bus driver but no further evidence apart from this statement was adduced by the Respondent to support such a contention.

[8]Following the Claimant’s termination of employment with Stagecoach on 6 December 2018 he is currently out of work and looking for employment again. Because he had less than two years’ service and was aware that he could not pursue a claim for unfair dismissal he chose not to appeal it against Stagecoach’s decision to dismiss him. He has applied for two positions since his dismissal from Stagecoach, one on 8 December 2018 for an assistant project manager with the Respondent and another on 3 January 2019 as an administrative officer with the Court of Justice in Romford. He has not obtained alternative employment as at the date of this hearing.

[9]The Claimant was dismissed for capability reasons based upon his health following an attack upon him in the workplace. He was not dismissed for misconduct or reason which undermine mutual trust and confidence that must exist between employer and employee. He was dismissed by Claudia Borjatti the dismissing officer who was still the Respondent’s area manager responsible for Leytonstone and Loughton Group Stations. She was the Claimant’s area manager since April 2016 and prior to this the Claimant had another manager. The Claimant gave evidence which was accepted by the Tribunal that he could quite happily worked with Ms Borjatti again. The appeal officer in respect of the Claimant’s dismissal was Mr Frank Ibe, the head of line operations. The Claimant only and frequently saw Mr Ibe. He gave evidence which was accepted by the Tribunal that he could quite happily work with Mr Ibe if reinstated. The Respondent did not call Ms Borjatti or Mr Ibe to give evidence to the effect that the relationship between the Claimant and those two managers had irretrievably broken down.

[10]The Respondent witness gave evidence to the Tribunal that the Claimant had by way of an email dated 21 October 2018 written to another member of staff within its operation but not involved in the Tribunal proceedings attaching a copy of the judgment and stating that Ms Borjatti unfairly dismissed him. The witness gave evidence to the effect that the sharing of this judgment demonstrated that the Claimant was unable to put the Tribunal process behind him and she would be concerned about the impact this would have on the business going forward. The email stated: “dear … thank you for all your support on the day I was assaulted. Here is a copy of the Tribunal decision. Claudia dismissed me unfairly. I am now having to sell my flat as I can’t afford the mortgage anymore. Have a nice weekend. Sharma” the Respondent’s position to the Tribunal was that this email demonstrated that it had lost trust and confidence in the Claimant and therefore a reinstatement order was not practicable. The Respondent’s witness was cross-examined on this issue and was unable to satisfactorily answer why the sharing of a public document would lead to the breakdown of the implied term of trust and confidence between the parties.

[11]The Respondent gave evidence to the Tribunal that there were six current vacancies at CSS2 level within London Underground and this was at page 435 of the bundle of documents. These vacancies included vacancies at Acton Town, Amersham, Ealing Common, Harrow on the Hill, and in Central Ladbroke Grove. The Claimant gave evidence to the Tribunal which was accepted that he would prefer to be employed within the Leytonstone and Loughton area on the Central Line if the Tribunal concluded that it was practicable to reinstate the Claimant to CSS2 level. However, he indicated that pursuant to his terms and conditions of employment he would be prepared to work elsewhere on the London Underground network as a CSS2.

Law

[12]Sections 112 – 116 of the Employment Rights Act 1996 (“ERA”) provide that where an employee has been unfairly dismissed and wishes to be reinstated or reengaged, the Tribunal must first consider whether to make such an order and should only make a compensatory award when it has made a positive decision against reinstatement or re-engagement.

[13]Section 114 provides: “(1) an order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. (2) on making an order for reinstatement the Tribunal shall specify –(a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatements;

(b) any rights and privileges (including seniority and pension rights) which must be restored to be employed; and

(c) the date by which the order must be complied with (3) if the complainant would have benefitted from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefitted from the improvement from the date on which he would have done so but for being dismissed. (4) in calculation for the purposes of subsection (2)(a) any amount payable by the employer, the Tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of - (a) wages in lieu of notice of ex-gratia payment paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the Tribunal thinks appropriate in the circumstances.”

[14]Section 116 Employment Rights Act 1996 requires the Tribunal in exercising its description to order reinstatement or re-engagement, to take into account “(a) whether the complainant wishes to be reinstated; (b) whether it is practicable for the employer to comply with the order; (c) whether the complainant has caused or contributed to his dismissal and whether it would be just to order his reinstatement.

[15]In respect of the case of the Scottish Police Authority

[2016] IRLR 633

, the Supreme Court said that at the first stage when a complainant who has been found to have been unfairly dismissed has confirmed his wish to be reinstated, the Tribunal’s judgment on the practicability of the employer’s compliance with the order is only a provisional determination.

[16]Lack of trust and confidence by the employer and the employee they make it unpracticable to order reinstatement. In the case of United Lincolnshire Hospitals NHS Foundation v Farren

[2017] ICR 513

, HHJ Eady stated that it was the employer’s view of trust and confidence (appropriately tested by the Tribunal as to whether it was genuine and found it on a rational basis) that matters, not the Tribunal’s view. Relevant factors may include:-(1) Whether the parties were able to trust each other;

(2) Whether the nature of the allegations made it impossible for the employee and the subjects of the allegations to work together again;

(3) Whether the industrial atmosphere had been poisoned against the employee and may lead to strife. Tribunal’s Conclusions

[17]During the Respondent’s closing submission, counsel confirmed that the Respondent was not producing an argument in respect of Section 116(5)(6) of the Employment Rights Act 1996 in respect of the appointment of a permanent placement for Claimant. The remaining issue for the Tribunal was to ascertain whether it was practicable for the Respondent to comply with an order for reinstatement.

[18]With regard to the arguments made by the Respondent, it was asserted that it was not practicable to reinstate the Claimant because there was a breach in trust and confidence and therefor it was unpracticable to reinstate the Claimant. The Respondent firstly asserted that the Claimant’s sharing of the judgment with an employee of the Respondent by email on 6 October 2018 following a successful claim for unfair dismissal in the Tribunal amounted to such breach. The Respondent’s witness asserted that this demonstrated that the Claimant was unable to put the process behind him and the Respondent was concerned about the impact this could have on the business going forward. The Respondent’s witness was asked on a number of occasions how the sharing of a public document on one occasion amounted to a breach of trust and confidence but was unable to do so. All that she could say was that she did not believe the Claimant should have shared the judgment with this one individual. The evidence adduced by the Respondent in this regard did not fulfil the test set out by HHJ Eady in the United Lincolnshire Hospitals case requiring the Tribunal to assess whether the Respondent genuinely believed that trust and confidence had broken down and that its belief in that respect was not irrational. The Tribunal was not satisfied that the Respondent had reached a rational conclusion that the sharing of the public document meant that the parties were unable to trust each other. Therefore, the Tribunal did not accept the Respondent’s evidence in this regard.

[19]The second matter that the Respondent asserted made it unpracticable for the Tribunal to order the Respondent to reinstate the Claimant was the circumstances surrounding the Claimant’s dismissal with Stagecoach. It should be noted that the Respondent readily accepted that prior to the Claimant’s dismissal he had no prior disciplinary record nor were his credential was in respect of honesty, integrity and reliability in question. The Respondent asserted that the circumstances surrounding the Claimant’s dismissal from Stagecoach for summary dismissal for misconduct were misleading to the Tribunal and to the Respondent. Therefore, the Respondent had lost trust and confidence in the Claimant. However, the Respondent was unable to produce any satisfactory evidence to the Tribunal that it genuinely believed that this particular issue led to a breakdown in trust and confidence and/or that its belief in this respect but was not irrational. The Respondent’s witness statement only stated that “I note however, that he was summarily dismissed from Stagecoach on 6 December 2018.”

[20]In cross-examination, the Respondent’s witness adduced no evidence over and above this assertion to persuade the Tribunal that the fact that the Claimant’s dismissal from Stagecoach amounted to a breach of trust and confidence and/or that that such belief was rationally held. It was also asserted that the Claimant’s role as CSS2 with the Respondent was a safety critical role as was the role with Stagecoach as a bus driver. However, over and above such assertion, no satisfactory additional evidence was produced to the Tribunal in this regard. The evidence adduced by the Tribunal could not substantiate the test set out in the United Lincolnshire Hospitals case namely whether the employer genuinely believed that the Claimant had been dishonest, whether that belief was irrationally held, and whether the employer had made good his case that confidence could not be repaired. In such circumstances, the Tribunal determined that it was reasonably practicable for the Respondent to reinstate the Claimant to a role at the CSS2 level within 21 days from the date of the promulgation of this judgment as set out at the beginning of this judgment.