Mr M Waterfield v The Stamford Stone Company Ltd: 3300634/2024
EMPLOYMENT TRIBUNALS
Case No 3300634/2024
Between
Mr M WaterfieldClaimantThe Stamford Stone Company LtdRespondent
Before
Employment Judge WyethIn person for claimantMr T Perry (instructed by Counsel) for respondentDate 25 March 2025
JUDGMENT
[1]The claimant was fairly dismissed.
REASONS
[1]By a claim form issued on 17 January 2024, the claimant brings one complaint of ordinary unfair dismissal following the termination of his employment summarily on 29 September 2023.
The issues
[2]The issues to determine in relation to liability are as follows: 2.1. Was the claimant dismissed for the potentially fair reason of misconduct (s98(2)(b) Employment Rights Act 1996)? 2.2. If so does the respondent prove that it: 2.2.1. had formed a genuine belief that the claimant was guilty of misconduct; 2.2.2. had reasonable grounds for that belief; 2.2.3. had formed that belief based on a reasonable investigation in all the circumstances? 2.3. Was the dismissal of the claimant fair in all the circumstances and in particular was it within the band of reasonable responses available to the respondent? 2.4. Did the respondent follow a fair process when dismissing the claimant (including having regard to the ACAS Code)?[3]The focus of this case was on the issue of whether or not the respondent held a reasonable belief in the claimant’s misconduct.[4]It was also agreed that I would consider issues relevant to liability only at this stage. Save for the issue of any potential Polkey reduction, other issues relevant to remedy would be clarified after any liability had been established.[5]A remedy hearing was provisionally listed with the parties for 30 April 2025 but given the decision on liability, that is no longer required and is now cancelled. Evidence[6]I was provided with a witness statement from the claimant consisting of 18 pages (containing 86 paragraphs). For the respondent I received witness statements from Mr Alan Hanrahan, the investigating officer (consisting of five pages), Mr Daniel Wilson, the disciplining officer (consisting of five pages); and Mrs Laura Green, the appeal officer (consisting of nine pages). I also had before me an agreed electronic bundle consisting of 292 pages, a supplementary bundle of 14 pages and a historic photograph of the claimant going back many years and a character statement from a friend of the claimant’s, Mrs Kay Adams.[7]Although the burden was on the respondent in this case to initially prove the potentially fair reason for dismissal, with the agreement of the parties, I heard evidence from the claimant first to enable him to settle in to the proceedings and gauge the process before having to embark on cross examination of the respondent’s witnesses. I then heard from the respondent’s witnesses in the following order: Mr Hanrahan, Mr Wilson, and Mrs Green. The evidence was concluded by 3.30pm and oral submissions on behalf of the respondent and the claimant were made in that order before the day concluded. There was insufficient time for me to provide an extemporary judgment and reasons. I therefore had to reserve my Judgment.
Findings of fact
[8]I make the following findings of fact on the balance of probabilities from the evidence before me.[9]The claimant was a very long serving employee of the respondent having commenced employment on 22 November 1999. Throughout that time he worked as a Sawyer at one of the respondent’s two quarries. The respondent is a supplier of natural stone and limestone. It has two quarries, Clipsham Bidwell quarry and Clipsham Medwell quarry. There were approximately five people working at the Medwell quarry. Throughout his almost 24 years of employment the claimant held a clean disciplinary record until he was summarily dismissed on 29 September 2023 for what the respondent says was gross misconduct.[10]On 30 August 2023 the claimant was suspended from work by the Operations Manager (at that time) Mr Alan Hanrahan in the presence of the site manager Mr Arlow. The suspension came about following receipt of an email from another employee of the respondent, Andrew Harvey. Mr Harvey had emailed the respondent’s external HR adviser on 29 August 2023 to complain about the claimant‘s behaviour towards him. In essence, Mr Harvey alleged that there had been a history of confrontations between him and the claimant.[11]Notably, Mr Harvey made various allegations about the claimant in that email. He referred to the claimant being threatening about a female health and safety consultant (from a third-party organisation) who had undertaken an inspection of the respondent’s site in or around the beginning of July 2023 and was said to have condemned the shed that the claimant used to take his tea breaks in at the Medwell quarry. According to Mr Harvey’s email the claimant said that he was going to “punch her if she showed her face in the quarry again” and accompanied this with punching actions. Mr Harvey made reference to the claimant shouting and swearing at him in the tea room in front of colleagues (although he was unspecific about when that was). He also referred to an incident involving a radio call by the claimant on 24 August 2023 in which the claimant broadcast that everyone would be leaving the site and if Mr Harvey did not have his keys then “it’s tough”. Mr Harvey went on to claim that he raised the matter with the claimant the next morning (25 August) in a calm manner and in response the claimant was said to have followed him around the site shouting at him. Mr Harvey also alleged that two colleagues apparently informed him on Tuesday 29 August 2023 that, after Mr Harvey had left the site the previous Friday morning, the claimant appeared to be livid about the fact that Mr Harvey raised the radio issue with him and told those colleagues that if Mr Harvey confronted him again, he would “find a hammer and kill [Mr Harvey]”.[12]Mr Harvey also stated in his email that he had been advised by the manager, Mr Arlow, to contact the respondent’s HR adviser directly due to a reluctance on the part of Mr Arlow to take any action against the claimant because of the claimant’s “previous allegations” (without saying more).[13]Upon being suspended, the claimant indicated to Mr Hanrahan that he would like to make a complaint about the behaviour of Mr Harvey who he said had threatened him.[14]Later that day the claimant received a letter of suspension setting out in broad terms the basis of the allegations against him namely: You used threatening language relating to an external third-party who carried out an health and safety audit; You used threatening language and behaviour towards a colleague; You used threatening and violent language about a colleague.[15]From his initial written response to the suspension letter, it is evident the claimant did not have a good relationship with Mr Arlow or Mr Harvey. The claimant believed that Mr Arlow had seized upon foul language he had used when Mr Arlow announced at a morning briefing to staff on 19 July 2023 that the shed was to be taken down. I interpose here that from the outset the claimant accepted that he was annoyed about the decision and swore when he was told but has always denied making any threats to anyone including (and especially) the female Health and Safety consultant - a position he has maintained throughout. The claimant had apparently used the shed for around 10 years and he believed Mr Arlow made the announcement because he held a grudge against him for a complaint he had made about Mr Arlow some six months before to HR (although I heard no evidence as to what this complaint was said to be about).[16]In addition, the claimant appeared to believe initially that the complaint leading to his suspension also related to the incident on 24 August 2023 involving radioing his colleagues to see if Mr Harvey was still on the premises. According to his response, the claimant was concerned because Mr Harvey’s car was inside the quarry and he would be locked in if he did not have his keys. The claimant admitted that when he received no response from his radio call he said “for fuck‘s sake, it’s tough if you haven’t got them”. Just as Mr Harvey had done in his email, the claimant then referred to an altercation between the two of them the next morning (25 August) during which the claimant said they exchanged unpleasant words with one another about the incident the day before. The claimant, however, maintained that it was Mr Harvey who shouted at him in front of everyone in the canteen because of what he had said over the radio the afternoon before and not the other way around.[17]The claimant followed this email up with a further email of 30 August 2023 in which he indicated he wished to make a formal complaint against Mr Harvey for threatening him with violence and violent language some time previously. Again, the claimant appeared to link this somehow to his difficult relationship with the site manager, Tom Arlow. The claimant did not specify when this behaviour was said to have taken place.[18]In a follow-up email of 1 September 2023 Mr Harvey expanded on his allegation about the claimant’s alleged remarks involving the Health and Safety contractor. He said that the claimant had made threats ranging from punching her in the face to sexual violence (something Mr Harvey had not mentioned in his initial email of 29 August) and that this went on for about three days. When asked to confirm what he meant by sexual violence, he alleged that the claimant made reference to “rape”.[19]Within days of the claimant’s suspension Mr Hanrahan began an investigation in to the claimant’s alleged conduct. As part of that investigation he interviewed seven colleagues who he believed may have witnessed the alleged incident. Three of those colleagues, Rob, Mark and Keiron were relatively new to the business.[20]During the process, Rob, who was a relatively new employee, claimed that the claimant said “Who’s that woman thinks she is? She needs hitting around the back of the head and raping. That’s my fucking shed and you can all fuck off” upon which he stormed off. He also commented on the poor relationship between the claimant and Mr Harvey, which had become even more strained after he and Mr Harvey had dismantled the shed.[21]When Mr Hanrahan interviewed another colleague, Keiron, he told Mr Hanrahan that the claimant approached him after the altercation with Mr Harvey on 25 August 2023 and remarked that Mr Harvey had “better watch out next time as [the claimant] will get a hammer and kill the cunt”. He alleged that when Mr Arlow suggested the claimant had a week to remove his stuff from the shed, the claimant replied by insisting that he would not move out, that is where he got his “peace and quiet, that’s my shed fucking ridiculous that bitch needs a good smack in the face and raping”.[22]Another colleague, Mark, also referred in his interview to hearing the claimant apparently telling Keiron that he would kill Mr Harvey with a hammer. When asked about the shed being condemned Mark also claimed to have heard the claimant huffing and puffing and was angry about “that woman” and something about “raping”.[23]As part of the same investigation process, Mr Hanrahan interviewed Mr Arlow. Notably when asked about what he heard the claimant say in relation to the health and safety consultant’s decision to condemn his shed, Mr Arlow said the claimant blew up and that the consultant “wanted punching in the face”. He made no mention of the claimant making any reference to sexual violence.[24]Mr Hanrahan also interviewed a colleague, Louisa, who offered no assistance with the matters in dispute as she was not present on either occasion.[25]Another colleague, Tim, claimed he was not present in the quarry at the relevant times and therefore could offer no assistance with what was said to have occurred.[26]An investigation meeting was held with the claimant and Mr Hanrahan on 11 September 2023. The claimant provided a two page letter to Mr Hanrahan at the start of the meeting. It contained generalisations about the behaviour of Mr Harvey and Mr Arlow. Again, it was clear from the content that the claimant did not have a good relationship with either of those individuals and consistent with his case throughout, he claimed that they were ‘out to get him’.[27]At that meeting, the claimant confirmed that Mr Harvey, Mark and Kieron were all present when Mr Arlow announced that the claimant’s shed would have to be taken down. He also claimed that Tim was present (contrary to what Tim had told Mr Hanrahan when they met). The claimant referenced Mark being “the new chap”. The claimant was insistent that when he was told that his shed was to be taken down all he said was “fucking hell” and did not say anything against anybody else. He accepted that he protested because that was “his bit of peace in there” and it’s “nice and quiet away from everyone”.[28]Mr Hanrahan explained to the claimant that it had been alleged that one of the comments he made was “who’s that woman think she is, she needs hitting round the back of the head and raping. That’s my effing shed and they can all F off”. The claimant became very upset by this and was adamant that he had not said anything of the sort about the female Health and Safety consultant.[29]The claimant alleged that Mr Arlow enjoyed winding him up and that was why he told him the shed had to be taken down. He made reference again to his belief that Mr Arlow had never got over the time the claimant had apparently complained about him to human resources. It would appear that Mr Hanrahan was aware of what the claimant was referring to because he commented that the incident involving the claimant and Mr Arlow had been dealt with previously (again, I heard nothing about this in evidence before me).[30]There was a general discussion about the claimant’s relationship with other colleagues. The claimant commented that he had previously had a good relationship with Mr Harvey but more recently he felt that Mr Harvey had been looking at him strangely.[31]There was also a discussion about the incident involving the radio on 24 August. Consistent with what he had said in his email following his suspension, the claimant accepted that Mark had asked him to radio Mr Harvey to confirm whether he had his keys before they closed up the quarry. He tried to radio Mr Harvey and because Mr Harvey did not reply, he said in frustration “it’s tough, it’s fucking tough.” He also accepted that there was a verbal altercation between him and Mr Harvey the next morning about the radio incident during which he said to Mr Harvey “you’re coming across like Mr Macho man”.[32]Mr Hanrahan put to the claimant that he had allegedly told others that if Mr Harvey confronted him again he would “find a hammer and kill him”. Again, the claimant was adamant that he said no such thing. He denied ever being aggressive to anybody. He accepted that he would swear in frustration but he was adamant that he was not violent and would not threaten violence.[33]The latter part of the investigation meeting was dedicated to addressing the claimant’s grievance and counter allegations the claimant had raised about Mr Harvey. He claimed that he and Mr Harvey had had a row about four and a half months previously. The two of them had been talking about Mr Arlow and the claimant said that after Mr Harvey said to him that Mr Arlow was a “backstabber” and could not be trusted, the claimant questioned Mr Harvey about whether he could be trusted not to be a “backstabber”. The claimant said that Mr Harvey went “ballistic” at this remark. He apparently called him an “effing cunt” and as he walked away from the claimant waved his fists at him. The claimant also alleged that he heard Mr Harvey calling him a gay bastard.[34]During the meeting with Mr Hanrahan, the claimant also made reference to having a difficult relationship with his colleague, Tim, in the past, but things had mellowed and calmed down over recent years.[35]Mr Hanrahan summarised his findings in a report. In his concluding remarks following these interviews, he commented that in his view the claimant had a volatile personality, had clashes with people that could come across as very aggressive, would use foul language and aggressive threatening comments that were not really directed at an individual but were about an individual. Notably Mr Hanrahan concluded that he did not believe that the claimant would follow through on any of those threats, but it did not detract from the fact that they were nevertheless threats and were totally inappropriate. He claimed to have experienced similar behaviour when he talked to the claimant about being suspended.[36]Mr Hanrahan was clearly of the view that the employees he interviewed seem to be genuine in their answers and the fact they had used different words to describe the incidents appeared to persuade Mr Hanrahan that they were being “individual in their responses” as he put it.[37]It seems Mr Hanrahan had doubts about the claimant’s sincerity when claiming to be extremely nervous and panicked. He was also concerned about the claimant’s threat to ‘bad mouth’ the company. Mr Hanrahan observed that the claimant had a clean disciplinary record for circa 24 years but that he believed his position at the quarry was untenable following this alleged behaviour. His recommended that the claimant be given a final written warning and be redeployed to a different site in a labourer role believing this to be “in the best interests of the company and protecting the company from any wrongful dismissal claim”.[38]The respondent wrote to the claimant on 18 September 2023 inviting him to attend a disciplinary hearing to address the same allegations listed in the suspension letter.[39]The letter referred to enclosing witness statements for the hearing and warned the claimant that due to the seriousness of the allegations a possible outcome could be his immediate dismissal for gross misconduct. He was also advised of his right to be accompanied at the hearing.[40]The claimant attended a disciplinary meeting with Daniel Wilson, one of the Directors of the respondent, on 21 September 2023. Mr Wilson put the same key allegations to the claimant as Mr Hanrahan had put to him at the investigation meeting.[41]Again the claimant was adamant that he had said no such things. He claimed that the colleagues who had alleged that he had made those remarks were ‘out to get him’ because they did not like him and believed that he was gay.[42]Mr Wilson wrote to the claimant on 29 September 2023 setting out the disciplinary outcome. The letter confirmed that he believed that the claimant was guilty of the first and third allegations and therefore he was to be dismissed immediately. Mr Wilson made reference to the statements and notes of interviews with Mr Harvey, Rob and Keiron and Mr Hanrahan’s interview notes with Tim, Mark, Louisa, and Mr Arlow.[43]With regard to the first allegation, Mr Wilson acknowledged in his letter that Tim and Louisa stated they were not present when the incident took place but he decided that he could see no reason why the other five individuals who stated that the comment was made would lie about this incident. For that reason he had determined that the allegation was made out. With regard to the second allegation, he declined to uphold that against the claimant because he believed that this was not a one-sided event, was a general altercation between the claimant and Mr Harvey and that the claimant had apologised to Mr Harvey for his behaviour. As for the third allegation, Mr Wilson acknowledged that only Keiron and Mark were apparently present when this alleged remark was said to have been made. Again, he could see no reason why the two of them would lie about that incident. Therefore, he concluded that the claimant had said what they alleged he had said.[44]The claimant was advised of his right to appeal and did so by way of a letter to Laura Green, also a director of the respondent, dated 4 October 2023. In it he referred to the fact that he had not received all the witness statements referred to by Mr Wilson, having received just two of them (although he did not specify which).[45]Broadly his points of appeal were: a) the witnesses were not consistent in terms of the exact words he was said to have inappropriately used; b) Despite his assertion to the contrary to Mr Hanrahan, Tim was present (the claimant said he was standing next to him) when the announcement about the shed was made on 19 July 2023; c) no one had checked CCTV footage; and d) he had not been suspended until a month and a half after the alleged comments about the Health and Safety consultant surfaced. The claimant maintained CCTV footage was relevant in two respects. Firstly, he said it would show that Tim was present at the meeting in July. Secondly, it would show that he did not speak to Mark and Keiron when he was alleged to have made the threat about Mr Harvey on 25 August 2023.[46]He repeated the fact that he believed he had been set up and that colleagues had questioned his sexuality in the past. For the first time in his appeal letter, he indicated that he believed Keiron was looking to take over his job[47]The claimant agreed to Mrs Green dealing with his appeal in writing.[48]On 8 December 2023, Mrs Green sent an appeal outcome letter to the claimant. The letter confirmed that, because of the error resulting in the claimant not receiving all the statements that existed prior to his disciplinary hearing, Mrs Green decided to undertake a full review of all the documentation relating to the disciplinary process when addressing his appeal.[49]Notably, following receipt of the claimant’s appeal letter (and a follow-up letter of 11 October 2023 with some additional points) Mrs Green decided that it would be necessary to collect more information in relation to the points raised by the claimant. She undertook a series of further interviews with staff members on 11 October 2023. In her correspondence to the claimant’s solicitor of 25 October 2023 Mrs Green sent all the statements and interview transcripts that had been gathered in relation to the claimant’s alleged conduct (including those that existed prior to the disciplinary meeting).[50]Mrs Green interviewed Mr Harvey on 11 October 2023. When she asked him why he did not report the comment until several weeks after the incident, Mr Harvey said he did not want to be seen to be telling tales. Mrs Green probed Mr Harvey about the fact that the claimant was alleging that he and his colleagues were colluding and making the story up to get him dismissed. Mr Harvey denied this and indicated that he did not want the claimant sacked but just wanted the aggression to stop. Mrs Green also put to Mr Harvey the fact that the wording the claimant was supposed to have said regarding the health and safety contractor appeared inconsistent. Mr Harvey repeated the allegation that the claimant apparently stated that she “wants punching in the back of the head and raping” or something very similar but was adamant that punch and rape were terms used.[51]On 9 November the claimant sent detailed responses to each of those documents to Mrs Green pointing out inconsistencies in things that had been said by the various witnesses and challenges to their evidence, mostly in the form of generalisations and counter allegations about their past behaviours.[52]As part of the appeal process, Mr Hanrahan confirmed to Mrs Green that the CCTV footage was no longer available because of overwriting that occurred every 45 days. Furthermore, there was some suggestion that there had been an outage caused by a lightning strike at some prior date, which meant that CCTV footage would not have been available regardless. It was also noted that the CCTV footage had no audio and would not have covered the entirety of the area in which events were said to have occurred. As a consequence it would have added no value to the investigation.[53]With regards to allegation one, Mrs Green concluded that although there were discrepancies in the words that witnesses said the claimant had used, there was a common theme, namely the fact that the word “rape” had been mentioned. She indicated that given the period of time that had passed by the time statements were taken she did not find it particularly surprising that the wording alleged by each witness was not identical.[54]Mrs Green also dealt with the challenge regarding Tim claiming not to be present when the announcement about the shed was made. She explained that she had questioned him about the fact that he had originally said he was not there. In his response to her, he said he had been confused and thought he was being asked if he was present when the health and safety consultant was actually on site (which he was not). Upon clarification, he accepted that he was present when the outcome of her visit was being discussed. He also confirmed that he did not hear the alleged comment being made by the claimant but that this might be because he was fairly hard of hearing. He told her that whilst he remembered the claimant being angry about the shed being taken down he did not hear any particular threats, although he did hear the claimant say something along the lines of “she can fuck herself”. Consequently, she rejected the suggestion by the claimant that Tim might have held back evidence when he was questioned initially because he was scared of other members of staff.[55]Mrs Green accepted that the claimant had a valid concern about the fact that it took a long time for the allegation to surface. She went on, however, to explain that she believed the evidence of those she interviewed when they told her that they were reluctant to tell tales about the claimant and that it was for this reason that nothing was said sooner. She also pointed out that the claimant was suspended very shortly after the allegations came to light.[56]She dealt briefly with the second allegation but given that this was not upheld against the claimant, it is not necessary to address this in any detail.[57]With regard to the third allegation, Mrs Green made the point that CCTV would not have added any value to the investigation in the absence of audio, but she had already indicated that the footage was no longer available in any event.[58]Again, she considered the level of inconsistency between what the two witnesses were alleging the claimant had said about Mr Harvey. She concluded that although there was some inconsistency, again, there existed a common theme. She did not believe that the variation between what the two employees were saying was significant. She was not satisfied that there was anything to support the claimant’s allegation that the witnesses were corroborating with one another with a view to being rid of the claimant. Instead, she indicated to the claimant that the witnesses refuted the claimant’s assertion that they were doing this because they believed the claimant was gay and noted that the claimant had never raised any concerns or comments about people remarking adversely about his sexuality prior to the commencement of the disciplinary process.[59]Ultimately, Mrs Green accepted the account of the witnesses interviewed and upheld the original decision to summarily dismiss the claimant and rejected the claimant’s appeal. She wrote to the claimant confirming her decision on 8 December 2023.
The law
[60]The law relating to unfair dismissal is predominantly contained in Part X ERA 1996. The respondent must first demonstrate that the principal reason for the claimant’s dismissed was for one of the potentially fair reasons set out in s98(1) and (2) (in this case, misconduct).[61]Section 98(4) contains the following: “[Where] the employer has fulfilled the requirements of subsection (1), the determination of the question of 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.”[62]Accordingly once the potentially fair reason has been established, the tribunal must then consider whether the dismissal was generally fair and, more specifically, whether the employer acted reasonably or unreasonably in treating that reason as sufficient for dismissal. The burden of proving whether or not a dismissal was reasonable is a neutral one.[63]In accordance with the seminal case of British Home Stores Limited v Burchell [1980] ICR 303, the respondent is not required to have conclusive direct proof of the claimant’s misconduct, only a genuine belief on reasonable grounds after carrying out as much investigation into the matter as is reasonable in the circumstances.[64]When deciding the issue of reasonableness, the tribunal must apply the band of reasonable responses test. Consequently it cannot substitute its own view for that of the employer but must instead ask the question as to whether no reasonable employer would have dismissed in those circumstances. Only then will a tribunal conclude that a dismissal fell outside the band of reasonable responses.[65]Furthermore, the band of reasonable responses test also applies to the extent of any investigation required to be conducted by the respondent in accordance with the third limb of the Burchell test. Again, the tribunal cannot substitute its own view as to what it would have done to investigate the matter but must instead ask itself whether what was done in terms of the investigation fell within what a reasonable employer would have done in those circumstances (J Sainsbury plc v Hitt [2003] ICR 111, CA).[66]The Court of Appeal decision in Newbound v Thames Water Utilities Limited [2015] IRLR 734 serves as a reminder to tribunals and parties that the band of reasonable responses is not an infinite one. It does have boundaries and it is right that the tribunal properly identifies those boundaries.[67]The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the basic requirements of fairness that will be applicable in most conduct cases and is to be taken into account by a tribunal when determining the reasonableness of the dismissal in accordance with section 98(4).[68]When determining whether a fair procedure has been followed in accordance with s98(4), a tribunal must assess the fairness of the disciplinary process as a whole. Accordingly, where procedural defects occur at an early stage, it is necessary to examine the subsequent appeal process, particularly its procedural fairness and thoroughness, and the open-mindedness of the appeal officer to establish whether any such defects have been cured by the manner in which an appeal has been conducted (Taylor v OCS Group Ltd [2006] ICR 1602 CA). Applying the law to the facts[69]It is important to remind myself and the parties that it is not the function of this tribunal to determine whether the claimant was actually innocent or guilty of the misconduct alleged. Likewise, it is not the function of this tribunal to decide whether it would have dismissed the claimant for any misconduct found to have occurred. Instead, I must decide whether the respondent had an honest belief on reasonable grounds following a reasonable investigation that the alleged misconduct took place. I must then go on to decide whether such conduct could have resulted in a reasonable employer dismissing the claimant regardless of whether this tribunal would have done the same in those circumstances (the ‘band of reasonable responses’ test).[70]This was a very unfortunate case where the respondent was faced with a polarized dispute of fact that could not be corroborated one way or the other by any independent objective evidence. A number of employees alleged that the claimant made wholly inappropriate remarks which, in turn, the claimant adamantly denied. Ultimately, it was for Mr Wilson and subsequently Mrs Green to decide whose version of events was to be preferred.[71]There was a very small workforce in existence at the quarry and five out of the seven employees who were on site had indicated that the claimant had made the very serious remarks of which he was accused. One of the seven employees was not present on either occasion and therefore provided no real assistance to the respondent. The other employee, Tim, subsequently corrected his position and indicated that he was present at the team briefing on 19 July 2023 when the first allegation was said to have taken place but he informed Mrs Green that he was hard of hearing and did not hear any comment made by the claimant. Of the five other members of staff who were present at that meeting, three of them were new employees and there was no suggestion that the claimant had any past issues with them or that they would have had any reason to have an ‘axe to grind’ with the claimant. Indeed, it was only at the appeal stage that the claimant first suggested that Rob may have been motivated to make the allegations up because the claimant believed he wanted his job.[72]It is precisely because of the tensions between Mr Harvey and the claimant that the allegations came to light in the first instance but notably the alleged behaviour of the claimant was not reported to management until some six weeks after the event. The claimant relied on that delay as a factor pointing in favour of his position (that his colleagues making the allegations were out to get him). Looking at that objectively, it was not unreasonable for an employer to regard the delay in raising the allegations as a factor that was either neutral or that may in fact have worked against someone in the claimant’s position. The directors were entitled to form the view that the reason the allegations did not surface sooner was because the claimant’s colleagues did not want to be seen to be telling tales, as they explained in the statements/interviews.[73]Indeed, if colleagues of the claimant were looking to make up stories about him because they were ‘out to get him’ it is not at all clear why they would delay doing so for a period of over six weeks. Furthermore, it would have been apparent to both the directors that the allegations originated from Mr Harvey and not from Mr Arlow even though the claimant maintained for the most part that Mr Arlow had wanted rid of him because of a complaint that he was said to have made about him some six months previously.[74]Given the number of colleagues who had made a similar (albeit not identical) allegation about the claimant and the fact that two of those colleagues were new and did not appear to have any issue with the claimant, I cannot say that the decision makers in this case, Mr Wilson and Mrs Green, failed to have a reasonable belief entitling them to come to the conclusion that the claimant had used the words that he was alleged to have used.[75]Following on from that, given that the two directors had decided to believe the majority of the workforce rather than the claimant and reject his case that this was part of a conspiracy to be rid of him, I turn to the issue of whether the decision to dismiss the claimant for the apparent misconduct was one that fell within the band of reasonable responses of a reasonable employer.[76]Mr Wilson confirmed in his evidence that he was acutely aware of the claimant’s long service and clean disciplinary record prior to these allegations coming about. Indeed, this had been mentioned in Mr Hanrahan’s investigation report to him. Nevertheless, the remarks said to be made by the claimant were undoubtedly egregious. Indeed, the claimant himself recognised how abhorrent they were as part of his emphatic denial that he had ever said such things during the disciplinary process.[77]The fact that the claimant had almost 24 years unblemished service with the respondent has given me cause for real concern about the decision to summarily dismiss him. I have had to reflect carefully on whether it could be said that a reasonably employer in those circumstances would have dismissed the claimant particularly given that the investigating officer had concluded that he did not believe the claimant had any intention of carrying out the threats that he was said to have made in front of his colleagues.[78]Ultimately, however, I am satisfied that once the directors had reached the conclusion that they believed the majority of the workforce rather than the claimant and therefore determined that the claimant had made the inappropriate remarks, those remarks were so serious and so wholly inappropriate in a workplace environment that the decision to dismiss did fall within the band of reasonable responses of a reasonable employer even after taking account of the claimant’s length of service. Even employees with long service cannot expect to act with impunity.[79]It is unfortunate that the claimant did not receive all of the statements and interview transcripts in advance of the disciplinary hearing but having considered the case he advanced both at disciplinary stage and the appeal stage the absence of the statements did not alter the thrust of the case he wished to put. In essence he maintained throughout that this was all lies on the part of his colleagues and that they were setting him up deliberately with a view to securing his removal from the workplace. Notably that was not consistent with the remarks made by Mr Harvey in his interview with Mrs Green on 11 October 2023 in which he stated that he did not want the claimant to lose his job but instead wanted to stop the claimant behaving aggressively.[80]In any event, I am satisfied that the claimant had an adequate opportunity to challenge all of the witness evidence as part of the appeal that was undertaken by Mrs Green and that the error in the process was properly rectified by the fact that Mrs Green undertook a thorough independent review of all the evidence and allowed the claimant to comment in detail on that evidence before reaching the same conclusion as Mr Wilson.[81]Even if the failure to provide the claimant all the evidence gathered as part of the investigation in advance of the disciplinary hearing did render the process unfair in some way (which is not my conclusion), I am satisfied that it would have made no difference to the outcome for the reasons I have already set out above. The directors had to decide whether they believed the majority of the workforce or whether they instead believed the claimant (or at the very least whether to give the claimant the benefit of any doubt). Even after the claimant had the opportunity to challenge the evidence of those employees who were said to have heard the remarks, it was still a matter for the respondent’s directors to come to the decision as to which side of the fence they wished to fall. Mrs Green did explore with the witnesses the pertinent points that the claimant was raising in support of his assertion that his colleagues were out to get him and she was satisfied by their responses. For those reasons even if there had been a procedural unfair dismissal it would have made no difference to the outcome and it would have still resulted in the termination of the claimant’s employment.[82]For all the above reasons, the claimant was fairly dismissed.