Mr M Hunt v IKEA Distribution Services Ltd: 3300382/2023 and 3300512/2023
EMPLOYMENT TRIBUNALS
Case No 3300382/2023, 3300512/2023
Between
Mr M HuntClaimantIKEA Distribution Services LtdRespondent
Before
Employment Judge L Brown
Members
Ms S Limerick and Mr C GrantMs Amesyu (instructed by Counsel) for claimantMr Profitt (instructed by Counsel) for respondentDate 14 June 2024
JUDGMENT
[1]By a unanimous decision the Claimant’s claim for unfair fails is not wellfounded and is dismissed.[2]By a unanimous decision the Claimant’s claim for wrongful dismissal is not well-founded and is dismissed.[3]By a unanimous decision the complaint of direct disability discrimination is not well-founded and is dismissed.[4]By a unanimous decision the complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[5]By a unanimous decision the complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed. Case Number: 3300382/2023 and 3300512/2023 2
REASONS
[1]In summary form the issues this Tribunal had to decide were as follows:1.1 Unfair dismissal.1.2 Wrongful dismissal (notice pay)1.3 Discrimination arising from disability contrary to section 15 of the Equality Act 2012 about the following: Dismissal on 22 October 2022.1.4 At a time between 23 September and the date of the Claimant’s dismissal on 21/22 October 2022, failing to make the following reasonable adjustment contrary to section 20 and 21 of the Equality Act 2010: - Case Number: 3300382/2023 and 3300512/2023 2 Adapting their Code of Conduct/any other relevant policy so as to permit sanctions or measures other than dismissal – such as a written warning or redeployment – to be adopted as regards the Claimant.
Findings of Fact
[2]The request for written reasons sent by the Claimant on the 7 August 2024 was not drawn to the attention of Judge Brown until the 13 November 2024, and we apologise to the parties for the delay in providing these written reasons.[3]We had a 365 page bundle before us. We also heard evidence from the Claimant. For the Respondent we heard evidence from Mick Houghton, Barbara Harrison, David Spence and Paul Bishop.[4]The Claimant commenced his employment with the Respondent on 22 October 2010 until his employment was terminated on 22 October 2022. He was throughout that time employed as a night shunter and at the time of his dismissal had been employed for 12 years. He had a clean disciplinary record at the time of his dismissal. The Claimant suffered from PTSD. This is an illness which affected his mental health and resulted in him not remembering certain incidents which occurred. He stated that his memory acted as a protective barrier for incidents which may affect him psychologically and/or result in his mental health worsening. This was not in dispute at the hearing. The Respondent in its Grounds of resistance accepted that his PTSD was a disability.[5]The Respondents handbook stated that all accidents and unsafe working practices were to be reported to management (p.82 of the bundle) although this was not in any event material as it was not a matter relied upon for his dismissal. It is also set out that any verbal or physical conduct against another employee is not accepted (p.84 of the bundle). However, the Claimant asserted that the handbook was based on voluntary actions and did not take into account those who suffer with involuntary reflexes such as an individual suffering with PTSD. We found that whilst this was true that the Respondent had offered a high level of support to the Claimant in the past in relation to his PTSD. It was this that gave rise to the stated provision, criterion or practice (‘PCP’) of expecting him to adhere to their code of conduct and disciplinary policy which the Claimant said should be adjusted. It was not in dispute during the hearing that the incident for which the Claimant was dismissed occurred, and when the Claimant was told that his application for the role in the Booking Office had been unsuccessful, and that it did potentially amount to gross misconduct.[6]It was not in dispute during the hearing, and we found that the Respondent had offered the following support to the Claimant: -6.1 It obtained 14 occupational health reports about the Claimant, and whilst we note that some of those related to his back condition (not a disability relied on in this case) some of those reports did relate to his PTSD (P.119, P.121, P.187, P.189, P.191, P.285) where the Case Number: 3300382/2023 and 3300512/2023 3 Respondent sought advice on what steps could be taken to assist the Claimant with his PTSD.6.2 They implemented a Wellness Recovery and Action plan (‘WRAP Plan’) in 2019 so that the Claimant could try and put practical steps in place to assist him with coping his disability and so that the Respondent could also explore what it could do to help the Claimant with his PTSD in the workplace.6.3 They arranged counselling for him [P.122].6.4 He was assigned a mental health first aider.[7]Around 2019, the Claimant completed the WRAP plan, which was a tool provided to him by the Respondent. As per the plan, he confirmed he had respectful and friendly relationships with his co-workers [p.330] and said that he had ‘never been in a position where I cannot approach anyone about anything. Even with my personal problems I was still able to communicate fully if needed.’[8]He also clarified that when he was having a ‘breakdown’, he found it difficult to think because of his PTSD and the increased frustration, leading to a lack of control [p.331]. We found however that, prior to the incident that led to his dismissal, he had never made a threat of violence to any employees.[9]We noted that he said in the wrap plan [P. 331] ‘being able to think clearly can be a real issue when I am having a breakdown in my control of my PTSD. I tend to speak out without actually knowing what I can be saying. The more frustrated I get the worse my lack of control is.’ We found therefore that one result of his PTSD was that he could suffer a complete loss of self-control in his behaviour. However, until the incident in question we found no evidence of threats against his fellow employees. In this respect we found that the contention by Counsel for the Respondent that there was in effect a sea change in his behaviour to be made out and we found that on the day in question his behaviour did show for the first time a threat to the safety of his fellow employees.[10]It was accepted by the Claimant that he could lose self-control, but he reiterated that it would never result in violence against others and would only result in him hurting himself. We found that whilst he asserted this the Respondents had no way of knowing that his loss of self-control would not one day tip over into him hurting a colleague, and the Claimant never denied, and we found that on the day of the incident he said ‘someone is gonna fucking get it’ [P.294] and that this amounted to a threat of violence against an unnamed employee. We also found that the offensive language he used was said by the Claimant on that day as set out in the investigation report. [P.294][11]We also found that the Claimant had a deep animosity to his colleague Marcin Sowinski. He believed that James Cameron would raise his hopes and in his words during cross-examination ‘he lifted me up and then dropped me like a brick.’ This was a reference to James Cameron informing him he had not been successful in relation to the role he applied for in the Booking Office. Case Number: 3300382/2023 and 3300512/2023 4[12]At page 333 – we noted that he said ‘I have found defusing myself from the situation is my best defence. If I walk away, I can go somewhere and try to calm down using my relaxing techniques. If I am not allowed to do this then the fire will get out of control, and I can completely lose it.’ We found that whilst this was a method he identified in his WRAP plan at no point during the incident that led to his dismissal did he request time out to go and try and calm down. We found he was never prevented from taking any time out at that point during the day of the incident. We found that he reacted to being told he had been unsuccessful for his application for the role in the booking office by simply storming out and while doing so acted in a very aggressive way.[13]The booking office role that the Claimant applied for later that year is referred to (P.218). He said it was more mentally stimulating and would be ‘using my head more. I am more in control of myself, physical aptitude it would be better for me. I've looked recently I need stimulating and shunting is not stimulating sorry what was I saying.’ We found that the Claimant had a strong desire to be appointed to a more sedentary role in the booking office.[14]Against this background of the Claimant being off sick on various occasions and trying to move into a sedentary role from his role as a shunter, we found that when he was told he was unsuccessful what followed was a complete lack of control. The Claimant gave evidence, and we found that he did not even remember what had occurred that day but that he did not deny the witnesses accounts in the investigation of what occurred.[15]On 15 August 2022, the Claimant attended an interview with Marcin Sowinski and Paul Bishop in respect of the Booking Office role (P. 235 of the bundle). The scoring was based out of 4. On most of the competencies, the Claimant scored 3 as per the meeting notes. It was not in dispute, and we found that the Claimant did well in both the first interview and the second interview which was referred to as the ‘Grandparent interview.’ It was also not in dispute the Claimant was the second highest scorer in this interview process after both the first and second interview with a score of 65 against Tomasz the successful candidate who scored 75.[16]On 22 September 2022, the Claimant received the feedback from his two interviews by James Cameron. He was told the interviews went well and he was given positive feedback about the parts of his answers which went well. The Claimant said in his witness statement that this ‘raised my hopes’ before he was then told he had been unsuccessful. He said that with his PTSD, raising an individual’s expectations before shutting them down acts as a trigger, which he said the Respondent was well aware of.[17]We found this part of the Claimant’s evidence to demonstrate the precarious tightrope that the Respondent walked with the Claimant in relation to his PTSD and the unpredictable nature of it. In particular during cross-examination, he was asked and said as follows: - Counsel - Mr Cameron explained that first interview went very well – you were in the top 2 out of 11 – that was a supportive thing to say and you agreed he Case Number: 3300382/2023 and 3300512/2023 5 was supportive – if the reality is you haven’t got the job he has to tell you that you haven’t got the job doesn’t he? He does yes - in a better way than he did. He says you interviewed very well - he’s supportive - he has to deliver the message you have not got the job, doesn’t he? He paused for ten seconds that’s what did it – he looked at his pad then looked around a bit then looked at me again then he said it. Mr Hunt he cannot possibly have known could he that pausing for ten seconds and looking around a bit and at you - could not possibly have known something as innocuous as that would cause you to explode – he could not have known, could he? He knew - he was aware of my PTSD - I did warn him after he had done that. Would you accept that pausing for ten seconds – looking at a pad and at you again – it would not occur to anyone whether they knew about PTSD even in a detailed way that something as innocuous as that could cause such a serious reaction - no one could know that could they? He has never done that before in all the interviews - never done that. The reality is coming to my example of things that might happen in future – such as performance management etc something similar i.e. anybody conducting some sort of meeting with you or any discussion might accidentally do something similar and you might explode in a way in which the Respondent has no way to predict that is the reality? No we know what to look for – how to evade it – I should have had help from the company as well as myself seeking more help – it should never happened again should it – PTSD is uncontrollable I admit – but you got to look for ways to avoid that situation again – I was pulled out of it once by Mick Houghton he knew what to do – and that’s how we avoid the situation - by people helping people not by making them out to be something they are not – PTSD is very hard to cope with. In this situation no one made you out to be anything before you exploded, did they? I warned him to be careful.[18]We found that the Respondent had done all it could to support the Claimant with his PTSD and there were no further reasonable adjustments it could make to help the Claimant with his PTSD. We found that where a ten second pause in a conversation could prompt an uncontrollable outburst which resulted in threats of violence to another employee, that the Respondents were faced with, despite all their best efforts, an unmanageable employee, who posed a risk to the health and safety of its other employees. Case Number: 3300382/2023 and 3300512/2023 6[19]We found that he left the meeting where he was told he was not successful in his application and as admitted by him he said in his return-to-work interview, P.242, ‘after the feedback session I started shouting before I even left it. I lost control, and completely blew. My PTSD kicked in. I could understand it just for a valid reason, but the reasons were not good enough, and I felt I was taken an advantage of. I was clocking out, walked out, went to put my radio in, stood next to Debbie, punched a wall and hurt my hand. I do not really remember exactly what happened after, at the time my mind was in a horrible state, brought back memories and I was not in control. Next thing I remember, I was home and realised I’ve done some damage to my hand. Pain gradually brings me down.’[20]On 30 September 2022, the Operations Support Manager investigated the above incident and requested the CCTV footage (see page 249 of the bundle). The Claimant was accused of the following:20.1 Breach of code of conduct – page 40 in the document - that the Claimant used inappropriate language and acted in an aggressive way. That following hearing that he was unsuccessful for the booking office role that he said, ‘someone is going to pay’ and ‘someone's gonna fucking get it'. It was said that the Claimant during a work meeting should not have used offensive language.20.2 Breach of code of conduct - page 25 in the document - that the Claimant used inappropriate and offensive language referring to other coworkers on the 23rd of September 2022 at around 5:58 when he said –‘I didn't get the job because of that Cunt, fucking Thomas got it, I kept asking that Cunt to let me spend more time in there and kept putting fucking Thomas in there.' This was said to amount to inappropriate and disrespectful language which breached the code of conduct where it was said that the respondent did not accept any verbal or physical conduct that disrespected or humiliated another person.20.3 Breach of code of conduct – page 30 in the document - that the Claimant on the 23rd of September 2022 between 05:40 – 05.42 pushed multiple doors with such force that they hit the wall as he walked from the corridor towards the reception and that this created the risk of potential harm or injury to people on the other side of the door as a result of this behaviour - this was said to be a breach of health and safety in the workplace.20.4 There was also a reference to a breach of the company's search procedure, and a breach of the code of conduct that required the Claimant to report all accidents and unsafe working practises and this was a reference to him hitting the wall and injuring his right hand and that he failed to report this accident to anyone. However, these 4th and 5th allegations were ultimately not made out and were not upheld against the Claimant by the Respondent. It was therefore not in dispute that the only matters for which the Claimant was dismissed were the matters set out above at paragraphs 21.1, 21.2 and 21.3. Case Number: 3300382/2023 and 3300512/2023 7[21]It was part of the Claimants case that the statements obtained during the investigation slightly differed with some employees remembering the shouting and slamming of doors whereas others did not. Reminding ourselves that we only need to decide whether the Respondent had a genuine and honest belief in the Claimants misconduct based on the statements obtained by the respondent during the investigation we find that the evidence they relied upon in their investigation was sufficient for them to form a genuine and honest belief that the allegations set out above had occurred and in any event we found this part of the Claimants case difficult to understand as he admitted that these incidents had occurred in the way described by the respondent. What the Claimant appeared to be trying to say was that it did not have the effect on his colleagues of making them afraid or apprehensive of him, which is a different point.[22]In any event we found that it did affect some of his colleagues and made them uneasy – as evidenced at page 264 where Carl Armstrong said the following: - ‘I felt that I don't want to get involved into this situation and just to stay away.[23]In addition, Mohammed Iqbal page 275 was asked about the incident, and he described him as follows: - ‘very angry and he looked like he wanted to fight, it felt like that. The way he was opening doors, he could have hit anyone on the other side and that person would be unconscious. And it was lucky did not hit anyone he was straight angry.’ He also said when asked how it made him feel that: - ‘It makes you feel upset to makes you anxiety and a bit scared. I don't know if anyone has challenged him, but I think he would have attacked him. He was walking one way and pushing doors with a rage, and I think it did not see anything in his way. It looked like he will explode. And other people were saying what's happened to him, why is he so angry. He was pushing doors with a force like he would like to break the doors. It is a bit scaring, and I would feel that he could knock out females we also have pregnant co-workers, etc. We have to be careful in a workplace. It was weird but the way I see it if you are angry, then take time to calm yourself down. But the way he took it was absolutely wrong.’[24]By a letter dated 11 October 2022, the Claimant was invited to attend an investigation meeting (See page 271 of the bundle). The same day, a telephone Occupational Health appointment was organised for 12 October 2023 (See page 283 of the bundle).[25]The Occupational Health report [P.285] set out the Claimants current issues with his PTSD. In the conclusion of the report it recommended that a WRAP plan was carried out in order to identify and address any concerns. They said the Claimant could actively support his own mental health by reflecting on the causes of stress and poor mental health and by taking ownership of practical steps to help address these triggers. They also recommended identifying Case Number: 3300382/2023 and 3300512/2023 8 potential workplace adjustments or modifications and ultimately to support their employee’s mental health. They said regular meetings with his manager would be beneficial to enable any anxieties to be discussed and dealt with at an early opportunity. Increased supervision and managerial support were also recommended until he had recovered his usual psychological resilience.[26]It was put by Counsel for the Claimant that the Respondent did not consider putting these adjustments in place instead of dismissing him and could have done so along with imposing a sanction short of dismissal. We found that such measures would not have offered any certainty about the Claimant’s future behaviour, and would not have prevented a similar incident if someone unintentionally triggered an outburst like this again from the Claimant, and that such adjustments were neither reasonable adjustments they should have to make in this case, nor would it have been an effective way of removing the risk the Claimant posed in the workplace when such measures in the past i.e. the WRAP assessment in 2019 had not prevented this incident occurring where amongst other things the Claimant threatened violence against an unnamed employee.[27]We noted that throughout the investigation minutes during which Piotr Mazur interviewed him and took notes that the Claimant in relation to every allegation put to him simply replied that he could not remember (P.287-292).[28]The Claimant stated that he believed he would have been suspended if they believed he was a threat to other colleagues. However, from the date of the incident to the date of the final dismissal the Claimant was off sick, and we found that it was simply not necessary for the Respondent to suspend the Claimant as he was not in the workplace in any event.[29]On 17 October 2022, the Claimant was invited to a disciplinary meeting to discuss the allegations (see page 300 of the bundle), and all the five allegations were said to be gross misconduct and were described as follows: - 29.1 Breach of code of conduct - page 40 of the document - you used inappropriate language and acted in an aggressive way with a warehouse manager on the 23rd of September 2022. 28.2 Breach of the IKEA code of conduct - page 25 of the document - regarding how we work with each other - in that incident you used inappropriate and offensive language when referring to other coworkers. 28.3 Breach of the IKEA code of conduct - page 30 - regarding the health and safety in the workplace in that you pushed multiple doors with such force that they hit the wall creating the risk of potential injury to other people. 28.4 Contravened the IKEA co-worker handbook by unreasonably refusing to comply with legitimate company search procedure as after Case Number: 3300382/2023 and 3300512/2023 9 the previously mentioned incident you left the IKEA building through main reception without pressing the random search buzzer. 28.5 Breach of the IKEA code of conduct - page 30 - regarding the reporting of accidents in that you hit the wall with your right hand resulting in injury and absence and failed to report this.[30]The letter inviting him to the disciplinary hearing warned him that he may be dismissed as a result of his gross misconduct – [P.300]. The disciplinary hearing then took place on the 20 October 2022. During that hearing the Claimant was accompanied by his trade union representative and was given a full opportunity to say anything in his defence.[31]During that hearing he gave details of the incident that caused his PTSD which was that his sister was terminally ill and that his nephew was killed in a horrific manner, and he had to view the body. He said he saw this new role that he had applied for in the booking office as a relief and that the counsellor told him it would have a calming technique and that he needed the stimulation mentally and this job may help and when he was told why he had not got the job and his absence was brought up again he said in his words ‘I just lost it' [P.306][32]His trade union adviser also stated that this was out of character for the Claimant, and he had known him for 10 years and that he was normally calm. This tribunal did not find that the Claimant was normally calm at work and he himself had referred to an incident where his trade union adviser Mr Haughton had to take him away from the situation and calm him down, although there was no suggestion this incident suggested threatening violence towards an employee. Mr Haughton also gave evidence, and we found, that the Claimant would get irate and angry, and use swear words to express himself. In finding the Claimant was not normally calm at work we do recognise that the Claimant has a disability which means that he finds it hard to control his behaviour and this finding is not to be taken as a criticism of the Claimant as clearly he cannot control himself when he is distressed and angry as that is how his disability affects his behaviour.[33]We noted that at no time during the disciplinary hearing on the 20 October 2022 did the Claimant apologise for his behaviour.[34]David Spence the disciplining officer gave detailed evidence about his conduct at the disciplinary hearing. He confirmed he knew about this as the Claimant told him about it at the outset of the disciplinary hearing. He said he knew he had PTSD, and he took this into account. He said he was familiar with the condition of PTSD having worked in the prison system for a number of years and knew the condition could have an impact on individuals and their behaviour. He confirmed he was familiar with the signs of PTSD such as them becoming fidgety, distant during a conversation or a lack of eye contact and that he was aware of these stress factors and that he should take this into account when completing the hearing with the Claimant. Case Number: 3300382/2023 and 3300512/2023 10[35]He confirmed that his role as the disciplinary manager was to review all the investigation documents and evidence presented to him and he was satisfied the investigation had been completed reasonably and thoroughly in line with their processes. He said he did not generally conduct any further investigations of his own unless something new was put forward by the coworker in the meeting. [WS paragraph 9].[36]in relation to the disciplinary hearing, he set out how he was appointed [WS paragraph 10], and the provision of all investigation documents [WS paragraph 11.] He set out the allegations and there were five of them. He reviewed the CCTV footage and concluded that the Claimant was very frustrated and could be seen opening the doors heavily so that they banged on the walls behind them and there were elements of shock on some of his colleagues faces as he passed through.[37]We were provided with CCTV footage which we did not review. This was due to it not being compatible with the device I used and in any event counsel for the Respondent accepted that it was not that material to our findings, and it was only the first minute of the CCTV that showed the Claimant walking down a corridor.[38]Mr Spence referred to the background information that the Claimant provided and that he had expected the Claimant to apologise and take accountability for his actions however did not do so at this stage of the disciplinary hearing on the 20 October 2022.[39]In his evidence in relation to the remaining three allegations he confirmed that his actions, which was bad language used towards another coworker, the threats he made against another coworkers well-being, the disregard for the safety for the others he had when making his way through the warehouse corridors and the impact the incident could have had on coworkers who could have been behind the doors when he slammed them open, was unacceptable. He said that the Claimant had shown no ownership of the impact his actions could have had, and the danger posed during the investigation of the disciplinary nor did he set out any steps that could be taken to ensure a situation like this did not arise again. He therefore confirmed he had a reasonable belief that he did commit the allegations against the Claimant and that they did amount to gross misconduct and his employment was terminated with immediate effect.[40]He said he had taken into account of his length of service and his personal issues, but he kept coming back to the lack of an apology and genuine remorse and that he thought the apology had come late only when he thought he was under threat of dismissal. We found that the Claimant only apologised when he knew his job was at risk and right at the end of the procedure and we accepted the Respondent’s evidence on this, and we did not find the Claimant’s remorse was genuine.[41]Mr Spence said he didn't accept that PTSD and being under stress warranted a lack of apology, albeit until the last moment when he realised his job was at risk, and remorse for wrongdoing that could have injured others nor did it Case Number: 3300382/2023 and 3300512/2023 11 excuse making threats about another coworker - he said he had to consider the safety of all other coworkers when making this decision [ paragraph 27] and he was also concerned that any issues he had stemming from his PTSD could cause another incident to occur if again he was given feedback he did not like and he had to consider all the other coworkers in the warehouse. We found that it was incumbent upon the disciplining officer to take into account the health and safety of all its employees.[42]He said he had to decide whether any of this was acceptable i.e. for an employee to make a direct threat against another coworker and potentially have a situation where a coworker was worried for their own and others welfare [paragraph 28], and he could not have another coworker worried for their welfare. He therefore concluded gross misconduct had been committed and it was sufficient evidence, and he formed a reasonable belief based on the Claimants own admissions and the CCTV evidence. We found that Mr Spence did have a genuine and honest belief in the Claimants misconduct.[43]In relation to the alleged discrepancies between witness statements Mr Spence said whilst some witnesses didn't recall the incident or describe the incident in a way others did that that could be due to having headphones on or not witnessing body language or facial expressions. He said the witnesses who did witness the incident all recollected and described a similar version of events. We find that these were reasonable conclusions for him to draw based on all the evidence.[44]The Claimant was told that the hearing would then end and that he should return the next day at 1:00 PM. He was told that the disciplining officer would therefore think about his decision - page 307. The next day on the 21st of October at the start of the hearing the Claimant then for the first time offered an apology. We found that by this point of the procedure Mr Spence had already decided that the Claimant should be dismissed for his gross misconduct but at this point of the meeting he adjourned the meeting as he said he would like to’ pause then as you are now making an apology … so would like to adjourn to re review and consider further.'[45]After this adjournment of around 22 minutes - page 308 - he was called back to the meeting and Mr Spence stated, ‘wanted to make sure considered everything for the final time including your apology from this afternoon.’ He then went on to confirm the Claimant was being dismissed for gross misconduct for the first three allegations but not for the 4th and 5th allegation. He said that (P.308) that he acknowledged the Claimant had now apologised but that his actions endangered fellow workers and IKEA property. He confirmed he was being dismissed with immediate effect. Case Number: 3300382/2023 and 3300512/2023 12 The Law Unfair Dismissal
The Law
[46]The Claimant was continuously employed by the Respondent for more than two years and in those circumstances had the right not to be unfairly dismissed by it (section 95 of the Employment Rights Act 1996).[47]Section 98 of the Employment Rights Act 1996 (‘the Act’) provides that: 98 General(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 (a) … (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. Case Number: 3300382/2023 and 3300512/2023 13[48]The correct approach for the Tribunal to adopt in considering section 98(4) of the ERA (as set out in Iceland Frozen Foods v Jones [1982] IRLR 439) is as follows: “… 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.[49]The ACAS Code of Practice on Disciplinary and Grievance procedures sets out matters that may be taken into account by tribunals when assessing the reasonableness of a dismissal on the grounds of conduct, as follows: 'Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently. Employers should carry out any necessary investigations, to establish the facts of the case. When investigating a disciplinary matter take care to deal with the employee an affair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against it. Be careful when dealing with evidence from a person who wishes to remain anonymous. In particular, take written statements that give details of the time, place, dates as appropriate, seek cooperative evidence check that the person's motives are genuine, and assess the credibility and weight to be attached to their evidence. Case Number: 3300382/2023 and 3300512/2023 14 Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct. And its possible consequences to enable the employee to prepare to answer the case of the disciplinary hearing. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements within the notification. At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should also be given a reasonable opportunity to ask questions, present evidence, and call relevant witnesses. They should also be given the opportunity to raise points about information provided by witnesses. Employers should allow an employee to appeal against any formal decision made.”[50]For guidance on the level of investigation and on the Respondent’s belief that an act of misconduct has occurred, British Home Stores v Burchell [1979] IRLR379 provides as follows: “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.” Case Number: 3300382/2023 and 3300512/2023 15[51]As at the time of the Claimant’s dismissal, the Tribunal is to ask(i) did the Respondent believe the Claimant was guilty of the misconduct alleged,(ii) if so, were there reasonable grounds for that belief,(iii) at the time it had formed that belief had it carried out as much investigation into the matter as was reasonable in the circumstances, and(iv) was the decision to summarily dismiss the Claimant within a range of reasonable responses open to an employer in the circumstances (Yorkshire Housing Ltd v Swanson [2008] IRLR609)? The range of reasonable responses test applies as much to the procedure which is adopted by the employer as it does to the substantive decision to dismiss (Sainsbury's Supermarkets Limited v Hitt [2003] IRLR 23).[52]The employer cannot be said to have acted reasonably if he reached his conclusion in consequence of ignoring matters which he ought reasonably to have known, and which would have shown that the reason was insufficient (W Devis & Sons Ltd v Atkins [1977] IRLR314, HL).[53]An employee can challenge the fairness of a dismissal if an agreed procedure was not correctly followed (Stoker v Lancashire County Council [1992] IRLR 75).[54]The fairness of the procedure adopted by an employer is to be assessed at the end of the internal process, including any appeal process. (Taylor v OCS Group Limited [2006] IRLR613). The process must be considered in the round. Smith LJ stated: “If [the Tribunal] find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceedings with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or review, but to determine whether due to the fairness or unfairness of the process procedures adopted, the thoroughness or lack of it of the process and the open mindedness or not, of the decision maker, the overall process was fair, notwithstanding any deficiencies at the earliest stage.”[55]Case law has identified that the reason for dismissal will be a set of facts known to the employer at the time of dismissal or a genuine belief held on reasonable grounds by the employer which led to the dismissal (Abernethy v Mott, Hay & Anderson [1974] IRLR213, CA). Case Number: 3300382/2023 and 3300512/2023 16 Polkey[56]In the event of an unfair dismissal the Tribunal must determine what would have been likely to have occurred if a fair procedure had been adopted, in accordance with the guidance in Software 2000 Ltd v Andrews [2007] IRLR 569. The EAT stated: “If the employer seeks to contend that the employee would or might have ceased to be employed in any event, had fair procedures being followed, or alternatively, would not have continued in employment indefinitely, it is for him to adduce relevant evidence on which he wishes to rely. … However, there will be circumstances where the nature of the evidence which the employer wishes to adduce or on which he seeks to rely, is so unreliable that the Tribunal may take the view that the whole exercise of seeking to reconstruct what might have been so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.”[57]Recent case law has moved away from the distinction between a finding of Unfair Dismissal on procedural grounds as opposed to dismissal on substantive grounds such as in Gover and ors v Propertycare Ltd. [2006] ICR1073, CA; Thornett v Scope [2007] ICR236, CA; Software 2000 Ltd v Andrews and Ors [2007] ICR 825, EAT; and Contract Bottling Ltd v Cave and Anor 2015 ICR146, EAT.[58]In North Lancashire Teaching Primary Care NHS Trust v Howarth EAT 0294/13 the Claimant suffered a number of catastrophic events in her personal life, including the death of her brother-in-law, her husband leaving home, receiving a diagnosis of breast cancer, and the death of a friend to the same disease. On 2 July 2008 she left a supermarket without paying, forced her way out of the store and drove away after trapping one person who attempted to restrain her with her car door and with a shopper on her car bonnet. She had no recollection of these incidents, and the medical evidence supported a diagnosis of automatism. However, she pleaded guilty to theft, battery and dangerous driving, and was dismissed from her employment. The EAT upheld an employment tribunal’s decision that the employer had acted within the range of reasonable responses in that H had been found guilty of serious criminal offences, which were relevant to her role as a health visitor in that she was banned from driving for 12 months. Case Number: 3300382/2023 and 3300512/2023 17[59]When deciding whether dismissal should be for conduct or capability, much will depend on the seriousness of the conduct and the severity of the employee’s condition. In Scott v South Thames Corporation EAT 157/96 the EAT made the point that there is no legal rule or principle that lays down mutually exclusive procedures for dealing with health problems and with problems arising out of an employee’s conduct. In each case, the question of whether the employer acted reasonably will depend on the circumstances. Disability Discrimination S.15 EqA 2010 Claims[60]Section 15 of EqA 2010 provides: - 15 Discrimination arising from disability. (1) A person (A) discriminates against a disabled person (B) if- (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[61]. In Secretary of State for Justice and Anor v Dunn EAT0234/16 the EAT (presided over by Mrs Justice Simler, its then President) set out the elements that must be established in a S.15 claim:(i) there must be unfavourable treatment.(ii) there must be something that arises in consequence of the Claimant’s disability.(iii) the unfavourable treatment must be because of (i.e., caused by) the something that arises in consequence of the disability, and(iv) the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[62]Each of these elements, together with the separate requirement in S.15(2) that the alleged discriminator must (or should) have known of the Claimant’s disability, must be proven. We have already found that the Respondent must (or should) have known of the Claimant’s disability.[63]It has been established that what must be shown is that the disability is 'a significant influence … or a cause which is not the main or sole cause but is nonetheless an effective cause of the unfavourable treatment as established in Hall v Chief Constable of West Yorkshire Police [2015] IRLR893, EAT and also in Pnaiser v NHS England [2016] IRLR170, EAT. 7. Case Number: 3300382/2023 and 3300512/2023 18[64]In Pnaiser v NHS England [2016] IRLR70, EAT, Simler P at [31] gives further succinct guidance on the general approach to be taken by a tribunal under s 15, in order to distinguish it from direct discrimination. The steps set out in that judgement can be divided as follows: -(1) Was there unfavourable treatment?(2) What caused the unfavourable treatment?(3) Was the cause 'something' arising in consequence of the Claimant's disability?(4) There can be more than one link in the causation chain, but the more there are the more difficult it may be to establish causation.(5) The causation test is an objective one. 20/21 EqA 2010 Claims[65]Section 20 of the Equality Act 2010 defines the duty to make adjustments as follows, 20 Duty to make adjustments:(1) …(2) …(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[66]The reasonable adjustments duty is contained in Section 20 of the EqA 2010 and is further amplified in Schedule 8. In short, the duty comprises of three requirements. If any of the three requirements applies, they impose a duty to make reasonable adjustments.[67]Section 21 provides that a failure to comply with one of the three requirements is a failure to comply with the duty to make reasonable adjustments by A (A being the employer or other responsible person) and amounts to discrimination, Section 21(1) and (2).[68]The approach that a Tribunal should take was set out in the judgment of HHJ Serota QC in Environment Agency v Rowan [2008] IRLR 20. We are required to identify: (a) the relevant arrangements (PCP) made by the employer, (c) the identity of non-disabled comparators (where appropriate), and (d) the nature and extent of the substantial disadvantage suffered by the Claimant (as a result of the arrangements). After determining the above we then must consider whether any proposed adjustment is reasonable; in particular, to determine what adjustments were reasonable to prevent the PCP placing the Claimant at a substantial disadvantage. Case Number: 3300382/2023 and 3300512/2023 19[69]A substantial disadvantage is one that is more than minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact. It is the PCP that must place the Claimant at the disadvantage Nottingham City Transport Ltd v Harvey UKEAT/0032/12, and the 2011 Code paragraph 16. Using a comparator may help with this exercise as the purpose of the comparator is to establish whether it is because of disability that a particular PCP disadvantages the disabled person in question, as set out in paragraph 6.16 of the 2011 Code of Practice on Employment.[70]The substantial disadvantage should be identified by considering what it is about the disability which gives rise to the problems and effects which put the Claimant at the substantial disadvantage identified, Chief Constable of West Midlands Police v Gardner UKEAT/0174/11. In Griffiths v Secretary of State for Work and Pensions [2014] UKEAT/0372/13, a case concerning the management of sickness absence, it was also explained that the fact that the disabled and non-disabled were treated equally and may both be subject to the same disadvantage when absent in the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled or category of them than it does on the able-bodied. Applying the Law to the Facts Unfair Dismissal[71]The Issues were set out as follows: - 1. Unfair dismissal1.1 The Claimant was summarily dismissed on either 21 or 22 October 2022. What was the reason or principal reason for dismissal? The respondent says the reason was the Claimant’s conduct at a meeting on 23 September 2022 when he was informed that his application for a Booking Office role had been unsuccessful. The Claimant says he was Dismissed for reasons relating to his disability.1.2 Was the Claimant dismissed for a potentially fair reason?1.3 If the reason for dismissal was misconduct, the Tribunal will need to decide whether the respondent genuinely believed the Claimant had committed misconduct.[72]We found that the reason or principal reason for the dismissal of the Claimant was that he was dismissed for reasons related to his conduct, and that this was a potentially fair reason for dismissal. Case Number: 3300382/2023 and 3300512/2023 20[73]We found that the respondent genuinely believed that the Claimant had committed misconduct based on our findings of fact above.[74]Applying the test of whether the Respondent believed that the Claimant was guilty of the misconduct alleged we found that the Respondent did believe that the Claimant had behaved aggressively in the workplace. This was not in dispute in any event in this claim.[75]As to whether there were there reasonable grounds for that belief the aggressive behaviour was never denied by the Claimant and so clearly the Respondent had reasonable grounds for their belief. 1.4 Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Claimant says that they did not because they failed to take certain steps including, but not limited to, the following: - 1.4.1 Seek/follow medical advice about the Claimant’s disability and the impact it has on him, including the effect it has on his behaviour.[76]We found that the Respondent did obtain an occupational health report as set out above following the incident [Page 285][77]We did not find the Respondent failed to act reasonably by not implementing these recommendations instead of dismissing him in all the circumstances of this case.[78]Applying the case of North Lancashire Teaching Primary Care NHS Trust above in relation to misconduct arising out of disability we found that this dismissal was still within the reasonable range of responses even though the misconduct arose out of the Claimant’s disability.[79]There was no argument pursued in this case that it was a capability issue rather than misconduct due to it arising from the Claimants disability but in any event, we still considered this point as highlighted in the case of Scott v South Thames Corporation as referred to above. This case established that there is no legal rule or principle that lays down mutually exclusive procedures for dealing with health problems and with problems arising out of an employee’s conduct. In each case, the question of whether the employer acted reasonably will depend on the circumstances. Whilst it was not disputed that the Claimants misconduct arose from his disability we found the procedure adopted was fair, and we found that the Respondent acted reasonably in all the circumstances of this case in deciding to dismiss the Claimant due to the clear health and safety risk he posed to the rest of the workforce. 1.4.2 Consider whether it had adequately supported the Claimant and Case Number: 3300382/2023 and 3300512/2023 21 made all necessary reasonable adjustments to support him at work.[80]We found that the Respondent had adequately supported the Claimant as set out in this Judgment and that it had made all necessary reasonable adjustments to support the Claimant as demonstrated by the numerous and various occupational health reports obtained by the Respondent and as referred to in this Judgment. 1.4.3 Give sufficient weight to the Claimant’s apology.[81]We find that the Respondent did give sufficient weight to the Claimants apology but found that the Claimant gave the apology too late and only after the disciplinary hearing had concluded, and we find his apology was only given at the point when the Claimant was called back the following day for him to be advised of the outcome, and that it was given too late and that the Claimant was not genuinely remorseful. 1.4.4 Give sufficient weight to the evidence provided by the Claimant’s colleagues who witnessed the incident on 23 September 2022.[82]We find that the weight given to all the statements obtained during the investigation were sufficiently weighted, having regard to the statements that both did evidence the misconduct and those that were also more neutral and the Respondents were entitled to decide overall whether the evidence did support the allegations against the Claimant, and that based on that evidence that they weighted the various statements appropriately and that they did form a genuine and honest belief in his misconduct. It is not the function of this Tribunal to substitute its view for the Respondents view of how the statements should be weighted and we find there was sufficient evidence on which they based their genuine and honest belief in his gross misconduct. 1.4.5 Take into account the Claimant’s length of service and the size of and resources available to the respondent.[83]We find that length of service of the Claimant was factored into the decision to dismiss and that even with the resources available to the Respondent, and the factoring in the size of the Respondent, that the decision to dismiss the Claimant was reasonable in all the circumstances of this case. 1.4.6 Consider alternative roles for the Claimant within the organisation.[84]We did not find that where gross misconduct had occurred that the Respondent should be obliged to consider redeployment as an alternative to dismissal as that would not remove the risk of the Claimant behaving in the same way in the future. Case Number: 3300382/2023 and 3300512/2023 22 1.4.7 Consider alternatives to dismissal.[85]We did not find that the Respondent failed to consider alternatives to dismissal. In any event a final written warning would not have made any difference to the risk of reoccurrence in the future. As the Claimant himself admitted he could not control his behaviour and so a final written warning would not have made any difference to the risk he posed to the Respondents other employees. 1.5 If the reason was misconduct, The Tribunal will usually decide, in particular, whether: 1.5.1 there were reasonable grounds for that belief.[86]We find there were reasonable grounds for the Respondents belief and the Claimant admitted his misconduct. 1.5.2 at the time the belief was formed the respondent had carried out a reasonable investigation.[87]We asked ourselves whether viewing the procedure in its entirety, to include both the investigation and the disciplinary process and also the appeal process, whether the respondent had carried out a reasonable investigation that was reasonable in the circumstances and that was within the range of reasonable investigations of any other employer and we find that they did carry out as much investigation into the matter as was reasonable in the circumstances. We found that at every step of the procedure the Claimant was given a full opportunity to state his case.[88]He was told that he could call any witnesses who he wished to the hearing and that he could provide any documents. We did not find any part of the investigation, disciplinary hearing or appeal procedure unfair in any procedural sense. We find a full and thorough investigation had been carried out which was in the reasonable range of investigations of any other employer. 1.5.3 the respondent otherwise acted in a procedurally fair manner.[89]We find that the Respondent did otherwise act in a procedurally fair manner for the reasons set out above. 1.5.4 dismissal was within the range of reasonable responses.[90]We found that the dismissal was within the range of reasonable responses of any other employer in all the circumstances of this case, and that the sanction applied of instant dismissal was a sanction that another employer could have applied within the reasonable range of responses. Case Number: 3300382/2023 and 3300512/2023 23[91]We considered the case of North Lancashire Teaching Primary Care NHS Trust v Howorth EAT to be particularly pertinent as already referred to above. This tribunal was very mindful of the fact the Claimant could not control his own actions. In particular in that case, it was said that even where the employee’s mental condition is such that his or her actions were involuntary, dismissal for misconduct may not be unreasonable. In this case the Claimant also asserted his actions were involuntary in that he could not even remember them, as evidenced when he was questioned in the disciplinary, and he said he could not remember. In North Lancashire the Claimant had no recollection of the incidents and the medical evidence supported a diagnosis of automatism. However, she pleaded guilty to theft, battery and dangerous driving, and was dismissed from her employment. The EAT upheld an employment tribunal’s decision that the employer had acted within the range of reasonable responses in that H had been found guilty of serious criminal offences, which were relevant to her role as a health visitor in that she was banned from driving for 12 months. We considered these facts to be relevant to this case before us as in that case it was also considered that there was a risk of recurrence. The employer had considered redeployment and ways in which it might mitigate the impact of the disciplinary process but felt that it had no option but to dismiss as there was a fear of reoccurrence as in this case. In this case of course there were no criminal charges arose but, in our judgment, this did not matter as it was the risk of reoccurrence that was in issue. (i) was the decision to summarily dismiss the Claimant within a range of reasonable responses open to an employer in the circumstances (Yorkshire Housing Ltd v Swanson [2008] IRLR609)?[92]In relation to the issue of the sanction imposed the appeal officer was asked whether she had considered instead of dismissing the Claimant, putting the adjustments recommended by the occupational health report into effect and imposing a lesser sanction. She said that she did consider this but that she felt the dismissal should stand. The function of an appeal officer is simply to review the decision taken by the disciplining officer, as well as reconsidering the alternatives to dismissal, and we found that she did, and we also found her decision to uphold the dismissal to be substantively fair and within the reasonable range of responses.[93]We found that whilst the Claimant’s 12 years’ service was a mitigating factor in his favour, as was his clean disciplinary record, we simply had to ask ourselves whether the sanction of instant dismissal was something that was in the reasonable range of responses of another employer with similar resources with an employee who had behaved like the Claimant had. Whilst it is true that some employers may not have dismissed him and may have imposed a final written warning, we may only ask ourselves whether it was within the range of reasonable responses to dismiss for this gross misconduct, and we find it was. Unfavourable Treatment Arising from Disability[94]The issues in relation to this claim under s.15 were set out as follows: - 4.1 The Claimant says that he is disabled because he has PTSD. The respondent accepts that the Claimant is disabled within the meaning of Case Number: 3300382/2023 and 3300512/2023 24 the Equality Act section 6 by virtue of his PTSD. 5. Discrimination arising from disability (Equality Act 2010 section 15) 5.1 Did the respondent treat the Claimant unfavourably by: ……………………………………… 5.1.2 On 21 or 22 October 2022, summarily dismissing the Claimant.[95]We find that the act of dismissal did constitute unfavourable treatment. 5.2 Did the following things arise in consequence of the Claimant’s disability: ……………………………………………………………… 5.2.2 The Claimant’s reaction to being told, on 23 September 2022, that his application for the Booking Office role had been unsuccessful.[96]We find the Claimants reaction to being told his application for the booking office role had been successful did arise from his PTSD. 5.3 Did the respondent …….. (ii) dismiss the Claimant because of his reaction to being told that his application for the Booking Office role had been unsuccessful.[97]We find that the Respondent did dismiss the Claimant because of his reaction to being told that his application for the role had been unsuccessful. 5.4 Was the treatment a proportionate means of achieving a legitimate aim? 5.5 The Tribunal will decide in particular: Case Number: 3300382/2023 and 3300512/2023 25 5.5.1 was the treatment an appropriate and reasonably necessary way to achieve the respondent’s aims.[98]We found that the treatment of the Claimant, i.e. his dismissal was an appropriate and reasonably necessary way to achieve the Respondents aims which was to protect the rest of its workforce. In a situation like this where the Claimant himself admitted that his PTSD caused him to lose control of his behaviour, and factoring in that we found that for the first time the Claimant had intimated violence against another employee when he said ‘someone is going to fucking get it,’ then we found in order to protect its workforce it had no alternative but to dismiss the Claimant, and that dismissing the Claimant was an appropriate and reasonably necessary way of achieving its legitimate aims.[99]We found where the Claimant had already completed a WRAP plan in 2019 to help him control his anger, and where he had been seen by occupational health and had been offered counselling, that the suggestion that it was not proportionate or reasonably necessary to dismiss him had not been made out when previous measures to help him had failed.[100]Quite simply its previous efforts to help the Claimant had not worked and this outburst, which posed a risk to employees by slamming the doors with force without knowing if someone was behind them, and also making a threat of violence against another employee, and also using offensive language in the presence of other employees calling the successful candidate ‘… that fucking cunt…’ did breach the Respondents code of conduct and did create a risk to the workforce of the Respondent.[101]In these circumstances we found that the treatment and his instant dismissal was appropriate and reasonably necessary to achieve the Respondents legitimate aims. 5.5.2 could something less discriminatory have been done instead.[102]For the reasons set out in this Judgment we did not find something less discriminatory could have been done instead. 5.5.3 how should the needs of the Claimant and the respondent be balanced?[103]It is in the judgement of this Tribunal a balancing act that comes down in favour of the Respondent, and its need to protect its workforce from harm must outweigh the needs of the Claimant in relation to his disability and remaining in employment when extensive support had been offered to him up to the date of his dismissal but in the end had not resulted in him being able to control his behaviour in the workplace. Failure to make Reasonable Adjustments Case Number: 3300382/2023 and 3300512/2023 26[104]The issues in relation to this claim were as follows: - 6. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) …………………………………………………. 6.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 6.2.1 Dismissing employees for gross misconduct in circumstances where there has been a breach or breaches of the respondent’s Code of Conduct. …………………………………………………………………..[105]We find the Respondent did have that PCP. 6.3 Did the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant is less likely to be able to comply with the code of conduct for reasons relating to his disability.[106]We find that it did put the Claimant at a substantial disadvantage compared to someone without the Claimants disability as he was less able to control his behaviour and comply with the code of conduct for reasons relating to his disability. 6.4 Did the respondent know or could they reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?[107]We do find that the Respondent knew or could be reasonably be expected to know that he was likely to be placed at his disadvantage as there was knowledge on the Respondents part that he had issues with controlling his anger, and we found there was an awareness in the Respondent of his PTSD and the anger issues this caused the Claimant to suffer from. 6.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests that, between 23 September and 21/22 October 2022, the respondent should have adapted the PCP by, for example, adopting alternatives to dismissal such as a written warning or redeployment. Case Number: 3300382/2023 and 3300512/2023 27 6.6 Was it reasonable for the respondent to have to take those steps? If so, when?[108]We did not find it was reasonable for the Respondent to have to adapt the PCP of expecting the Claimant to comply with its code of conduct and its disciplinary policy. To do so would in the Judgement of this Tribunal place an intolerable burden on the Respondent whereby it would have to live with the risk of future outbursts if someone unintentionally triggered the Claimant by doing something innocuous like pausing for a moment in a conversation, as occurred on the day of the incident when he was being advised he had not got the role and as set out in this Judgment. In particular when James Cameron looked at his pad, paused for around ten seconds after giving some positive feedback, and before telling him then of the outcome the Claimant gave evidence that James Cameron ought somehow to have known this would trigger him. By the Claimants very own admission therefore he could be triggered by the actions of other people that on the face of it were simply normal parts of discussions and body language between employees. In that situation it cannot be said in our judgment to be reasonable for the Respondent to have to take the steps of amending its code of conduct and disciplinary policy so that such an outburst did not result in the Claimant’s summary dismissal.[109]In relation to the suggestion that the Respondent could have instead given a written warning we did not find that was a reasonable step for the Respondent to have to take. It would not have removed the risk of reoccurrence and the risk to its workforce, nor would redeployment of the Claimant have avoided this risk either.[110]We did not think it was a reasonable adjustment for the Respondents to have to make to offer redeployment in addition, and we find it was not a reasonable adjustment for the respondents to have to amend their code of conduct or any other policy, so that the Claimants behaviour was no longer treated as gross misconduct, or that the sanctions that could follow should be adjusted to avoid his dismissal, to include offering him another role instead of dismissing him.[111]We found that it cannot be a reasonable step to expect this employer to take to adjust its disciplinary code where the Claimants conduct presented a risk to the health and safety of its employees so as to ensure that this employee remained in the employment of the respondent when there was a future risk of repeated incidents.[112]The claim about the application for the role in the Booking Office based on the Claimants sickness absence was withdrawn during the hearing and so we make no findings of fact about this. Wrongful Dismissal[113]In relation to the incident that occurred that led to the Claimants dismissal and recognising that in relation to the wrongful dismissal claim we must ask ourselves whether on the balance of probabilities the incident occurred in the way described by the Respondent, we find that it did, and that the Claimant did commit a fundamental and repudiatory breach of contract which was culpable misconduct by him and which entitled the Respondents to treat his contract as at an end with the Case Number: 3300382/2023 and 3300512/2023 28 result that were entitled to dismiss him without notice, and we find that he was not wrongfully dismissed.[114]The Claimants claims for Unfair Dismissal, Wrongful Dismissal, and Disability Discrimination contrary to s.13, s.15 and s.20/21 therefore fail and are dismissed.