Mr A Sochon and others v The Felixstowe Dock and Railway Company: 3300711/2023 and others

EMPLOYMENT TRIBUNALS

Case No 3300711/2023

Between

Mr A Sochon Mr J Parsley Mr P Stead Mr K WrightClaimant

The Felixstowe Dock and Railway CompanyRespondent

Date 6 November 2025

JUDGMENT

[1]The complaints under s. 146(1)(b) and s. 152(1)(b) Trade Union and Labour Relations (Consolidation) Act 1992 are struck out as having no reasonable prospects of success.

[2]The Claimants’ other complaints will proceed to the final hearing.

REASONS

[1]By ET1 claim forms dated 24 February 2023 the Claimants make a number of complaints arising out of a dispute over pay occurring during 2022. There were in the region of 796 claimants including the four named above who brought complaints under s. 145B Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”). The majority of those complaints have since been withdrawn.

[2]The four named Claimants had also made complaints of the following:2.1 Ordinary Unfair Dismissal – s. 98 Employment Rights Act 1996 (“ERA”)

2.2 Automatic Unfair Dismissal – s. 238A(2) TULR(C)A 1992

2.3 Automatic Unfair Dismissal – 152(1)(b) TULR(C)A 1992

2.4 Automatic Unfair Dismissal – 104F(1) ERA

2.5 Detriment – s. 146(1)(b) TULR(C)A.

2.6 Detriment – Regulation 9 Employment Relations Act 1999 (Blacklists) Regulations 2010

2.7 Wrongful dismissal

[3]The four named Claimants have been referred to as the “Sochon Claimants” in order to distinguish them from the other Claimants who only sought to bring complaints under s. 145B TULR(C)A.

[4]A preliminary hearing for case management took place before me on 10 November 2023 where the parties were most helpful in clarifying the legal issues to be decided and agreeing directions for the final hearing which has been listed for 13 October 2025 for 12 days.

[5]The Respondent made reference to the appeal in the matter of Secretary of State for Business and Trade v Mercer

[2022] EWCA Civ 379

which concerned s. 146 TULR(C)A. In that case the Claimant said that she had suffered detrimental treatment for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union “at an appropriate time” or penalising her having done so.

[6]The Court of Appeal had decided in that case that TULR(C)A does not protect employees from action short of dismissal for having taken part in industrial action. This reversed an earlier judgment on the matter from the Employment Appeal Tribunal.

[7]In the immediate claims the Claimants are arguing that they were automatically unfairly dismissed (contrary to s. 152(1)(b) TULR(C)A) because they had taken part in the activities of an independent trade union at an appropriate time.

[8]The "activities of an independent trade union" relied upon by the named Sochon Claimants is participation in industrial action by not attending work on a strike day and by being present outside the Respondent's premises in support of the industrial action. In addition, Mr Stead relies on filming of the picket line between 6am and 7am.

[9]The industrial action took place during August 2022.

[10]The Claimants also argue that they were subjected to detriments for having done so contrary to s. 146(1)(b). Seven alleged detriments are relied upon.

[11]I have pasted at Annex A below an extract from the agreed list of issues which sets the complaints brought under s. 146(1)(b) and also s. 152(1)(b) TULR(C)A.

[12]On 17 April 2024 the Supreme Court issued its decision in Secretary of State for Business and Trade v Mercer

[2024] UKSC 12

[13]It was the decision of the Court that: i. Section 146 TULR(C)A is incompatible with Article 11 insofar as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union; ii. Whereas section 3 Human Rights Act 1998 requires courts to interpret primary legislation in a way which is compatible with Convention rights (unless the legislation itself makes it impossible to do so), a Convention compatible interpretation of section 146 of TULR(C)A is not possible and would amount to impermissible judicial legislation rather than interpretation; iii. Accordingly section 146 TULR(C)A cannot be interpreted as providing protection from detriment short of dismissal for having taken part in industrial action.

[14]Within that judgment at paragraph 44 the Court made reference to the judgment of the EAT in Drew v St Edmundsbury Borough Council

[1980] ICR 513

where it was held that Parliament had intended there to be a distinction between what is an activity of an independent trade union and taking part in industrial action.

[15]Lady Simler in Mercer makes it clear that the requirement in section 146(1) that the activity must be carried out “at an appropriate time” to qualify for protection, and the phrase “at an appropriate time” is defined as meaning outside working hours, or within those hours where the employer consents, and further: “45…Industrial action will normally be carried out during working hours if it is to have the desired effect since to withhold labour at a time when the employer has no expectation of labour being provided is unlikely to have any consequence. Although as both tribunals below noted, there are some forms of industrial action (for example, refusing to work voluntary overtime beyond contracted working hours) that would, on the face of it, be carried out outside working hours and therefore “at an appropriate time”, the intention is plainly to limit that protection to activities which are not inconsistent with the performance by workers of primary duties owed to the employer.”

[16]Following that appeal decision I understand that there was correspondence between the parties as the Respondent invited the Claimants to withdraw their complaints under s. 146(1)(b) and s. 152(1)(b). I understand that the Claimants were reluctant to do so as they wished to refer this matter to the European Court of Human Rights and were mindful about exhausting domestic remedies first.

[17]On 6 November 2024 the Respondent made a written application for a strike out of the s. 146(1)(b) and s. 152(1)(b) complaints under Rule 37 Employment Tribunal Rules of Procedure 2013 which I summarise below: i. The Claimants’ claims under section 146 TULRCA cannot succeed in light of the Supreme Court's conclusive ruling in Mercer that section 146 does not provide the protection sought. The Supreme Court’s ruling in Mercer that section 146 does not provide protection against detriment short of dismissal for workers taking part in industrial action is based on its finding that participation in industrial action does not amount to participation in trade union activities under TULRCA. ii. Section 152(1)(b) of TULRCA provides that a dismissal will be unfair where the reason or principal reason for dismissal was that the employee had taken part, or proposed to take part, “in the activities of an independent trade union at an appropriate time”. The Supreme Court’s finding in Mercer that industrial action cannot constitute participation in trade union activities for the purposes of TULRCA applies equally to claims under section 152. Therefore, the Claimants’ claims under section 152 of TULRCA can no longer stand. iii. Accordingly, the Claimants have no reasonable prospect of success in pursuing their claims under sections 146 and 152 of TULRCA.

[18]By the time of today’s private preliminary hearing for case management earlier today progress had been made between the parties and I should record that both parties in this matter have been cooperative and pragmatic in trying to move this issue forward. Ms Barsam restated the Respondent’s application and Mr Birrell for the Claimants confirmed that they neither consented nor objected to the application. Both parties agreed that this should be dealt with on the papers and that no further written submissions were necessary. Law

[19]The Trade Union and Labour Relations (Consolidation) Act 1992 provides: 146 Detriment on grounds related to union membership or activities.(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, …

(2) In subsection (1) “an appropriate time” means— (a) a time outside the worker's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work. … 152 Dismissal of employee on grounds related to union membership or activities. (1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee — … (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, (2) In subsection (1) “an appropriate time” means— (a) a time outside the employee’s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

[20]I have already summarised the judgment in Mercer above which is not repeated here. Strike out

[21]Rule 37 of the Employment Tribunals Rules of Procedure 2013 provides: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; ...

[22]A two stage test must be followed under Rule 37. A tribunal must consider whether any of the grounds under Rule 37 have been established before then deciding whether to exercise its discretion to strike out given the permissive nature of the rule – Hasan v Tesco Stores Ltd

UKEAT/0098/16

[23]It is an established principle that the threshold for striking out a claim or a response for having no reasonable prospect of success is a high one – Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 300

. Where facts are in dispute it would be very exceptional for a case to be struck out without the evidence first having been tested by the tribunal – the facts must disclose no arguable case in law. A strike out has been referred to as a draconian power which should not be used lightly – Blockbuster Entertainment Ltd v James

[2006] EWCA Civ 684

[24]In Balls v Downham Market High School and College

UKEAT/0343/10

the EAT held that the power should only be exercised after careful consideration of all the available material, including the evidence put forward by the parties and the documentation on the tribunal file. No reasonable prospects of success does not mean likely to fail or a possibility that it may fail, and it is not a test which can be decided by considering whether the other party’s version of events is more likely to be believed. The test is essentially as described in the Rule – that there is no reasonable prospect of success.

[25]The Court of Session in Tayside Public Transport Company Ltd (t/a Travel Dundee) v Reilly

[2012] IRLR 755

(CS) held that “… where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts.”

[26]In Romanowska v Aspirations Care Ltd

UKEAT/0015/14

Langstaff P held: “Sometimes it may be obvious that, taking the facts at their highest in favour of the claimant, as they would have to be if no evidence were to be heard, the claim simply could not succeed on the legal basis on which it has been put forward. Where, however, there is a dispute of fact, then unless there are good reasons, indeed powerful ones, for supposing that the claimant’s view of the facts is simply unsustainable, it is difficult to see how justice can be done between the parties without hearing the evidence in order to resolve the conflict of fact which has arisen.” (paragraph 1)

[27]Most recently in HHJ Kalyany Kaul KC v(1) Ministry of Justice;

(2) The Lord Chancellor; and

(3) the Lord Chief Justice

[2023] EAT 41

the EAT has confirmed “that the need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit.”

Conclusion

[28]The Respondent has referred me to the recent first instance judgment dated 31 July 2024 of the Bristol Employment Tribunal in the matter of Rodrigues and others v Royal Mail Group Limited Case Number 1404078/2022 dated 31 July 2024. In that case the s. 146 complaints were struck out on the basis of the Supreme Court judgment in Mercer.

[29]It is entirely appropriate of the Respondent to draw such matters to my attention, and whilst I have been mindful of how other tribunals in similar cases have approached similar questions, I make it clear that in reaching my decision today I have not rubber stamped a judgment from another tribunal. Nevertheless, I was grateful that judgment was brought to my attention and I note that claim concerned only s. 146(1)(b) TULR(C)A whereas this claim also involves s. 152(1)(b) as well.

[30]I note that within Mercer the Supreme Court held that the reference to “activities of an independent trade union” in section 146(1) does not include taking part in industrial action. Given the manner in which the Claimants have set out their complaints as recorded in the list of issues, it appears to me that the judgment in Mercer is directly applicable to their complaints.

[31]I also note that the Supreme Court held that sections 146 and 152 of TULR(C)A are sibling provisions which should be interpreted consistently with each other.

[32]I am mindful that the Claimants appear to have accepted the applicability of the judgment in Mercer to their claims although they have neither consented nor objected to the Respondent’s strike out application. The Claimants have not advanced any arguments before me why the claims under s. 146(1)(b) and s. 152(1)(b) should not be struck out and they have not sought to distinguish their claims from the Mercer judgment. I have looked to identify any obvious distinguishing features in this case, however I have not identified any and moreover the judgment in Mercer is very clear about the lack of protection for detriments short of dismissal for having taken part in industrial action.

[33]I therefore find that given the judgment in Mercer the Claimants have no reasonable prospects of successfully arguing that the detriments they claim to have suffered (if found to have occurred) were due to having taken part in industrial action given that it falls outside of the protection afforded by s. 146(1)(b). I am bound to find the same with respect to s. 152(1)(b) given that I am required to give them a consistent interpretation.

[34]In the circumstances I find that those two claims exceed the Employment Tribunal’s statutory jurisdiction and therefore have no reasonable prospects of success and I therefore exercise my discretion to strike them out on that basis.

[35]The Claimants’ other remaining complaints are not struck out and they will proceed to a final hearing to commence on 13 October 2025. Case Numbers: 3300711/2023, 3300712/2023, 330713/2023 and 3300714/2023 EMPLOYMENT TRIBUNALS Claimants Respondent(1) Mr A Sochon v The Felixstowe Dock and Railway

(2) Mr J Parsley Company

(3) Mr P Stead

(4) Mr K Wright Heard at: Watford, by video, via Cloud On: In person on 15-17, 20-21, 23 Video Platform and 27 October 2025 and in private on 22 and 24 October 2025 Before: Employment Judge Hyams Members: Mr S Holford Mr A Scott Representation: For the claimants: Mr Stuart Brittenden, KC For the respondent: Mr Andrew Burns KC and Ms Talia Barsam of counsel UNANIMOUS JUDGMENT ON LIABILITY 1. The claimants were not dismissed unfairly within the meaning of section 98 of the Employment Rights Act 1996 (“ERA 1996”). 2. The reason or principal reason for the claimants’ dismissals was not that they had taken part in protected industrial action within the meaning of section 238A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. 3. The claimants’ dismissals were not wrongful. Their claims for damages for breach of contract therefore do not succeed. 4. The claimants’ claims of unfair dismissal within the meaning of section 104F of the ERA 1996 (relating to blacklisting) and detrimental treatment within the meaning of regulation 9 of the Employment Relations Act 1999 (Blacklists) Case Numbers: 3300711/2023, 3300712/2023, 330713/2023 and 3300714/2023 Regulations 2010, SI 2010/493, are dismissed having been withdrawn during the hearing (on 16 October 2025). Approved by JUDGMENT having been sent to the parties on 26 November 2025, and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided.

[36]There was on the next page a “witness statement” of the same sort, made this time with the name of the manager shown as Mr Angira and signed by Mr Alan Davies, whose name was printed in the space where the date should have been inserted. The text of the “statement” was as follows. “On the morning of the 21st August 2022, I received a call from a Supervisor that came to work and identified an employee on the roundabout of dock gate 1 using a go pro device, aiming at cars entering the port while coming to work. The employee was identified as Peter Stead. Robert Angira (Senior Manager) had attended Dock Gate 1 on that morning and I had informed Robert that there was an employee filming people attending work so that this could be dealt with as it could have been seen as intimidation against those willing to work.”

[37]At page 1730 there was an email from Mr Angira sent at 20:31 on 28 August 2022 to Ms Crawford. Its text was as follows (with its original bold and italic font). “Please be advised that, at around 06:25 on Sunday 21st August 2022, and whilst undertaking supervisory duties (welcoming employees who had opted to ‘cross the picket line’ and ensuring bullying or intimidating activities were not taking place) at Dock Gate 1, I observed a member of UNITE’s 6- strong picket, Peter Stead (4137), standing at the edge of the entrance road and holding a GoPro camera in his left hand, and a UNITE placard in his right hand. Now, as each employee’s car pulled up, P. Stead leaned into the road and pointed the GoPro camera towards the driver of the vehicle. I observed him do this to five vehicles before approaching the Port Police, who were positioned approximately 3 metres away from me. I advised the officer on duty that the actions of P. Stead appeared to be intimidatory, and requested the officer to look into the matter immediately. Following this, the officer on duty approached the picket supervisor (wearing a yellow band on his left arm) who, in turn, walked up towards P. Stead and held a brief discussion with him. And shortly after this, P. Stead concealed the GoPro camera within his jacket and just waved the UNITE placard instead. However, after about 10 minutes, P. Stead revealed the GoPro camera again and began pointing the camera towards oncoming vehicles. Once again, I advised the officer on duty that the actions of P. Stead appeared to be intimidatory, and requested the officer to look into the matter immediately. And moments after this, I received a call from Alan Davies (9099), Operations Manager, who advised me that, a number of employees driving into work had expressed concern to him that P. Stead was ‘filming them’ using a GoPro camera, and that they felt intimidated by his actions. Following the phone call, I approached the officer on duty and reminded him of my concerns. At this point, I left Dock Gate 1 and made my way back to Centenary House.”

[38]On 30 August 2022, Mr John Whitby of the respondent sent the email at pages 1684A-1684B to Ms Crawford, with,(1) in the subject line, the words “Port employee with camera - No 1 Gate”,

(2) the photograph at page 1684B, and

(3) this text on page 1684A: “Please find attached a copy of a photo of the person using a camera to film at the No 1 Gate entrance to the port that was sent to us anonymously. The Picket supervisor was spoken to by the Port Police in relation to filming and advised that filming on public property is not an offence, but if the pictures are used or uploaded to a platform to intimidate the person taking the images may be liable to a conspiracy charge.” The disciplinary policy of the respondent

[39]The respondent’s disciplinary policy was at pages 141-153. On page 151 it stated under the heading “Serious Disciplinary Offences/Gross Misconduct” that the “following disciplinary offences” would be “considered serious enough to result in dismissal or summary dismissal regardless of whether or not the employee has received a warning”, but that the list (which was on that page and the next one, page 152) was “neither exclusive nor exhaustive and does not indicate any limitation upon Management’s right to exercise discretion in individual cases”. The list included (as number 3) “Physical Violence or Bullying”, under which this was said. “The use of physical violence and / or menacing behaviour within normal work environment and/or out of work/social events supported by the Company.”

[40]The respondent’s “Policy against Bullying and Harassment” was at pages 535- 540. Most of it concerned harassment within the meaning of section 26 of the Equality Act 2010. We saw that in paragraph 3.5 on page 536 the “work place” was said to be “considered as any place where the Company’s business is conducted. This extends, for example, to locations away from the normal place of work and can include work related social activities and business trips.”

[41]However, one of the bullet points of paragraph 4.1 where “[e]xamples of unacceptable behaviour” were set out was this (this was on page 537): “the use of social media platforms such as Facebook, WhatsApp etc to bully, harass or demean colleagues”.

[42]There was a definition of “bullying” in paragraph 3.2 on page 536, where it was said that “Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” The investigation into the manner in which the list of 20 employees came to be circulated

[43]The respondent’s Mr Luke Grimwood carried out an initial investigation into (as it was said in the first page of the report on page 844) “the sharing of sensitive information during industrial action”. That page bore the date of 27 August 2022, but that must have been the day when the report was started as it referred in its contents list on page 845 to investigatory meetings which had taken place on 28 August 2022. The list of 20 employees to which we refer in paragraphs 29 and 32 above was referred to in the contents list as Appendix A and was stated to be a “Labour Internal Tractor (IT) sheet”. The report was preceded in the bundle by notes of interviews with several employees. Mr Adam Haile (who was, it was said at page 847, supporting the Yellow Hub supervisor) was one of them, and the notes of his interview, recorded as a signed witness statement in the form to which we refer in paragraphs 35 and 36 above, were at pages 835-836. Mr Haile had himself put the list in question on a noticeboard of the respondent, and in answer to the question “Did you see anyone taking pictures of the IT Sheet?”, said this: “I saw 1 IT driver take a zoomed in photo of what I assumed was their name and equipment ID as this is common practice.”

[44]He also said that he could not identify that driver.

[45]Mr Jayson Hayfield was the Yellow Hub supervisor. He was interviewed by Mr Grimwood on 27 August 2022 and the result, recorded as a “witness statement” in the same way, was on pages 837-838. In answer to the question “Did you see anyone taking pictures of the IT Sheet?”, he said this: “No. I was in the office for most of the shift other than visiting the Operations Centre twice briefly. However I did speak to Luke Mason who confirmed he saw a few people taking phots of the sheet on the board.”

[46]There was a note of an investigatory meeting with Mr Bryn Davis which was dated 27 August 2022 and was at pages 839-840. He was noted to have told the interviewer, who, along with Mr Davis, had signed the note but was unidentifiable from his signature, that he had seen one person take a photograph of the IT sheet, and that it was Mr Neale Ricotti. At pages 841-842 there was a note of an investigatory meeting of 28 August 2022 with Mr Nick Curtis, and he too said that he had seen one person taking a photograph of the IT sheet and that it was Mr Ricotti.

[47]Mr Grimwood’s report included a statement of the “Facts of the incident” and a “Conclusion”. Those were on pages 847 and 848 respectively. The former recorded that “Multiple people were seen to take photos of the sheet” which was put up “on a brown cork board outside the [Yellow Hub] supervisors office”, and that Mr Ricotti had been seen to photograph the same document when it was put up on “the white notice board” for the Blue Hub. In the middle of page 847 it was said that “The Green Hub is yet to be confirmed.” The “Facts of the incident” concluded at the bottom of page 847 with these words: “The image has been shared at least 4 times to the following people: Andrew Sochon, Keith Wright, Jamie Parsley and Matthew Rogers.”

[48]The conclusion “So far” stated on page 848 was that “From studies of the image that has been shared (appendix B) the photo has been taken from either the Blue Hub or the Green Hub (to be investigated) due to the nature of the noticeboard (whiteboard).”

[49]However,49.1 while the text message from Mr Sochon of 22 August 2022 (at page 789) was enclosed with the draft report (it was copied at page 834), the text message from Mr Parsley’s mobile telephone and forwarded with Mr Wright’s photograph and name on the screenshot (at page 794H) was not so enclosed; and

49.2 it was difficult to see from the photograph at page 789 and the screenshot at page 794H on what background the IT sheet had been placed.

[50]In any event, it is convenient to record here that Mr Grimwood did no more by way of investigation into the question of who had sent on the IT sheet with the 20 names on it. That was despite the facts that50.1 Mr Ricotti’s name was on it, but that did not in itself mean that he did not send on the list, as he might have been a “mole” for Unite;

50.2 there were said by Mr Luke Mason to have been “a few people taking phots of the sheet on the board” (not, we note, “multiple” people), but Mr Mason was not asked to say how many people did that, nor whether he could identify them; the fact that they took a photograph of the list on the cork noticeboard outside the Yellow Hub supervisor’s office was not conclusive, since the image at page 789 showed nothing of the noticeboard to which the image had been secured; and

50.3 there was, it seems clear, no investigation of what had happened in the Green Hub.

[51]In addition, Mr Grimwood did not ask Mr Rogers who else was in the “Port Ops Group Chat” to which we refer in paragraph 31 above. Nor did anyone else acting on behalf the respondent do that. Nor did Mr Grimwood (or anyone else acting on behalf of the respondent) ask Mr Baxter who was the team member who sent him the photograph (referred to by Mr Angira in the email which we have set out in paragraph 27 above as a “screenshot”) to which we refer in paragraph 29 above, i.e. the photograph at page 789. The claimants’ suspensions

[52]The claimants were all suspended on 30 August 2022. The letters informing them of their suspensions were at pages52.1 1143 for Mr Parsley,

52.2 1388 for Mr Sochon,

52.3 1688 for Mr Stead, and

52.4 1867 for Mr Wright.

[53]Mr Poole was said in the letter at 1388 to have had a conversation with Mr Sochon on 30 August 2022 about the suspension, and Mr Stack was referred to in all three of the other letters as having had a conversation with each of the three recipients of those letters about their suspensions, but both Mr Poole and Mr Stack said in their witness statements (and we accepted) that they were not involved in the decision to suspend all four of the claimants. All of the letters at pages 1143, 1388, 1688 and 1867 were in the name of, and signed by, Ms Crawford, whose job was stated in each of them to be “Employee Relations Manager”. The letters were almost identical.

[54]On 2 September 2022, Mr Stack emailed Ms Crawford (page 870), in the following terms. “Hi Emma, Did you get any clarity from exec or make any decisions on whether we should remove these three from suspension? I know we discussed it yesterday and didn’t come up with a definitive answer in the end. I’m now about to do the 2 investigation meetings of Jamie Parsley and Keith Wright so if you get chance could you let me know please.”

[55]Ms Crawford replied on the same day, in the email above that of Mr Stack, still on page 870: “Hi Ben, No decision made as such with the Exec, albeit I haven’t seen anyone today, but you or Matt had alluded to leaving them on suspension until their disciplinary’s? We should be able to get them in quickly to avoid anything or once the investigations are complete we have time on Monday to review and make a decision potentially also? However I think if there are any exceptions then Mr Keith Wright would be one (depending on the investigation) as he appears to have just made a single comment rather than share the list?”

[56]All of the claimants remained suspended until they were dismissed. In paragraph 13 of his written closing submissions, Mr Brittenden invited us to “reject Mr Luck’s evidence that the references to the Executive Team were references to him” and submitted in paragraph 8 of those submissions that “There was no evidence of any cursory investigation carried out before deciding to suspend - a case of suspend first, ask questions later. It is striking that Messrs Sochon, Parsley and Wright were each suspended in the absence of any formal complaint being submitted.”

[57]We agreed with those submissions in part. On the balance of probabilities, the executive team relied on Mr Luck’s advice, we concluded, so it was not unrealistic for Mr Luck to regard “the Executive Team” in the circumstances as for practical purposes him. It is also true that there was no “cursory investigation” into or any “formal complaint” about the photographs at pages 789 and 794H. But in our judgment there was in the circumstances no need for a formal complaint for those photographs to be the subject of a disciplinary investigation, because those photographs spoke for themselves. The investigations carried out to determine what, if any, disciplinary case the claimants should answer

[58]Mr Poole was (he said in paragraph 9 of his witness statement) “appointed as investigator in respect of allegations of gross misconduct by Andy Sochon and Peter Stead, around the period of 26 to 30 August 2022.” Mr Stack was, as he said in paragraph 12 of his witness statement, “appointed as investigator in respect of allegations raised regarding [Mr Parsley and Mr Wright]” and, he said, that would have been “during the week after the strike on or around 30 August 2022.”

[59]For present purposes, it is not necessary to state in detail what documentary evidence was put before Mr Poole and Mr Stack to enable them to see what the disciplinary allegations against the four claimants were. It is, however, necessary to refer to the extent to which the claimants responded to the allegations in their meetings with Mr Poole and Mr Stack.

[60]Mr Poole interviewed Mr Sochon in person on 30 August 2022, without giving him advance warning of the interview. The notes of the interview were at pages 1418-1419. Mr Sochon was shown to have said that he “came about” the IT sheet at page 789 because it was “sent to” him and that “lots of people saw it”. He said, however, that he did not know who sent it to him, and that he could not recall when he received it as he had “deleted it”. When asked to whom he had sent it, he said: “I’m not aware that I sent it to anyone, it was last week I can’t remember”. He said that there was no message accompanying the image when he received it. Mr Sochon was accompanied at the interview by a trade union representative, Mr Dale Battley, who said: “this image was all over social media, lots of people had it and seen it. But where it came from, we don’t know.” When Mr Sochon was asked on what social media he saw the image, he said that he did not know. The rest of the passage on page 1418 was as follows. “When receiving the picture how did you respond? AS - looked at it that was it Did you send a message back to whomever posted/uploaded the original message? AS - no I don’t think so Did you discuss this with any other induvial(s)? [sic] AS - lots of people are talking about it”.

[61]As recorded at the top of page 1419, Mr Poole asked Mr Sochon whether there was anything that he wanted to add, and Mr Sochon said that there was not. Mr Poole then adjourned the meeting for 10 minutes and then asked Mr Sochon whether he was sure that there was nothing else that he would like to add. Mr Sochon said that he did not want to add anything.

[62]Mr Poole interviewed Mr Stead in person on 6 September 2022, having invited him to the interview in the emailed letter dated 31 August 2022 at page 1698 sent with the email of 2 September 2022 at page 1697. The letter referred to “the sharing of a list that identified non-strikers, which is against Company Policy”. The notes of the interview were at pages 1732-1733. The material allegation was not the “sharing of a list” but the use of a GoPro camera, and that was put to Mr Stead as recorded in the following passage on page 1732. “It has been alleged that on the first morning of the strike (Sunday 21st August approximately between 0600 0700hrs) you were seen on the picket line with what has been described as a GoPro camera or similar device. When vehicles were approaching the entrance to the port you were on the verge of the road and were pointing the said device In the direction of the drivers. A police officer approached the picket line supervisor asking for your actions to stop. A conversation was held between yourself, and the picket line supervisor and your actions ceased for a short period. A little later you were again spotted doing the same thing again, holding the device in the direction of oncoming drivers.”

[63]Mr Stead’s response to that allegation was that he did “a lot of go pro stuff, motorcycling filming” and that he was “going to make documentary of it for [him]self.” He denied filming “oncoming drivers”. Mr Parsley

[64]On 31 August 2022, Mr Stack sent letters to Mr Parsley and Mr Wright, inviting them each to an investigation meeting on 2 September 2022. The letters were at pages 1145 and 1869 respectively. They were so far as material in the same terms as the letter at page 1698.

[65]Mr Parsley attended the meeting with a Unite representative by the name of Mr Gary Joy. There were notes of the meeting at pages 1172-1173. Mr Stack’s description of the meeting in paragraphs 25-29 of his witness statement was revealing, and it was as follows. ‘25. Jamie was accompanied by Unite representative Gary Joy. I remember that Jamie was very upset. It was an emotive meeting and we had to stop a couple of times for him to take a break. I remember that Jamie’s responses in the meeting were generally “don’t know” or “can’t remember”. Keith’s answers seemed to be similar and I did wonder if they might have been told to take that approach. I felt it was clear early in the meeting with Jamie that I wasn’t going to get anything from him. There were times in the meeting when Jamie had started answering and Gary interjected to stop, including at one point by putting his hand out as if to indicate Jamie should stop saying so much. I felt bad for Jamie, as he was incredibly emotional. Gary called the investigation process “union bashing” and he stormed out of the room at the end of the meeting. Jamie came back after that to apologise, which I understood was him apologising for how the meeting had gone. We would usually get a copy of the minutes signed at the end of an investigation meeting, but Gary refused to sign, which is noted at the end of the minutes (p. 1173). I have recently reviewed the meeting minutes at p. 1172-1173 and they reflect my general recollection of the meeting (which is nearly 3 years ago now).26. I see from the minutes that Jamie acknowledged he had received the image, but he said he couldn’t remember sharing it or why he had shared it. I thought it was strange that he couldn’t remember a text from a few days before .

27. His explanation was that he “had 117 messages on [his] phone so struggled to maintain what gets sent and to whom [he] forwarded on to” (p. 1172). He also explained that many people had received the image, even “a gentlemen across the road from [him] received it and he left the Port 4 years ago” (p. 1173). I noticed that he could remember the exact number of messages on his phone that day and details about his neighbour receiving the image but said that he couldn’t remember if he had shared the image. When I asked different questions about who had sent the image to him and what the name of the chat group was, he sat in silence. My view was that his answers had contradictions all the way through.

28. I can’t remember whether I put all the evidence I had reviewed to Jamie in the meeting, and I can see that it’s not recorded in the minutes. I think I had the print out of the relevant screenshot in each investigation meeting. I do recall that Jamie appeared to understand the allegation and he knew others had received the image, so he clearly understood which image I was referring to.

29. I did give Jamie the opportunity before the end of the meeting to provide any other information he felt was relevant. He said no and he did not choose to share anything with me after the meeting.’ Mr Wright

[66]Mr Stack’s witness statement contained an equally informative description of his interview with Mr Wright. That was in the following paragraphs. ‘31. Keith was also accompanied by Gary Joy. My recollection of the meeting is that it was very different to Jamie’s meeting, Keith had no emotion and seemed to be non-plussed. The entire meeting was very quick and he didn’t make eye contact with me. I remember that Gary was calmer in this meeting than he had been in Jamie’s and he didn’t interject as much as Keith gave nothing in response to my questions. I assumed he had been told to say as little as possible.32. As with Jamie’s investigation meeting, I have refreshed my memory by reviewing the meeting minutes at p. 1897 to 1899 which reflect my general recollection of the meeting.

33. Keith acknowledged that he had received the image of the list of nonstrikers more than once but didn’t remember where he received it from. His responses to every question after that were short answers like “not applicable”, “pass” and “no clue” (p. 1897 to 1898). I would have expected him to deny it if he had not shared the image. It was clear that he understood what image and what comment I was referring to in my questions.

34. When I asked him why he commented on the image, he responded “personal feelings” (p. 1898), which I thought was at least a bit of honesty and an admission that he had added that comment.

35. I asked him the name of the group where the image was shared and he responded “dock groups” (p. 1898). This indicated that he could remember where the image had come from. When I asked a follow up question on who was in the group he just said “colleagues” (p. 1898).

36. Before I closed the meeting, I gave Keith the opportunity to provide any other information he felt was relevant. He referred to having a beer with one of the people included on the list of strike-breakers, Geoffrey Johnson (p. 1899). My view was that he was trying to say that no one was affected by his comment and brush away the complaint. I didn’t accept that just because he had a beer with one person that his actions didn’t have an impact on people. His comment had been targeted at a lower-paid group of people, the Port Operatives, who Keith would have known may have felt more of a financial pressure to work during the strike.’ The reports of Mr Poole and Mr Stack

[67]Mr Poole and Mr Stack sent draft reports of their investigations to Ms Crawford and otherwise communicated with her about their investigations. Mr Poole’s reports

[68]For example, Mr Poole sent Ms Crawford the email of 6 September 2022 at pages 1705-1706, in which he wrote this about his interview of Mr Stead: “With a little more agility I could have pressed how Peter was feeling (as he mentions he felt intimidated by the exec, Clemence and the filming [to which we refer in paragraphs 134 and 135 below]) yet he was doing the same”.

[69]On page 1390, there was an email from Mr Poole to Ms Crawford in the following terms. “Hi Em This is the report I have thus far for the Andy Sochen [sic] case, feels weak. Its missing the detail about what the allegations will be considered under and what policy breaches there are. If you get 2 mins (and that’s all it will take to read) before this avo’s meeting to get some thoughts together. Thanks Matt”.

[70]In paragraph 54 of his witness statement, Mr Poole said this. “Emma also suggested in those emails that we contact the person who had provided the screenshot but wanted to remain anonymous, to match up the phone number to Andy’s number in our LMS system as the screenshot only showed Andy’s name. I had noticed that his name was spelled wrong and wanted to verify it was him in the screenshot. I didn’t speak to that individual and I can’t recall if Emma spoke to them, but I can see in the investigation report that it was confirmed that the mobile number on the recipient’s phone was the same as Andy’s number in LMS (p. 1413). Andy also did not deny that he had shared the image of the list and he did not give me any different mobile number to prove that the message in the screenshot was not sent by him. I was satisfied that the screenshot did show Andy sharing the list of strike breakers.”

[71]We saw that at the bottom of page 1389 Ms Crawford had written this in an email sent on 5 September 2022 to Mr Poole: “We discussed potentially making contact with the individual who wanted to remain anonymous if we look to do this and they can confirm to us the mobile number it was sent through on we can confirm via LMS that is was [sic] Andy’s mobile to at least evidence that he definitely shared it on. Shall I see when the individual who came to us is in next and see if it’s happy to do that for us?”

[72]In paragraph 55 of his witness statement, Mr Poole described what happened next to his draft investigation report: “After meeting Emma to discuss next steps, the HR Case Management team added in details of the complaints the Company had received from employees about fears of retaliation for coming to work during the strike, including an anonymous summary of reports received (p. 1442) - which I also included in the investigation report for Peter).”

[73]There was then further involvement of the respondent’s HR team, as described in paragraph 57 of Mr Poole’s witness statement, namely: “I shared the updated report with Mark Brown on 23 September 2022 (p. 1397) to get a fresh set of eyes on the report. Mark updated the report to include references to the relevant policies, to cover some additional procedural points (including the date of suspension and that Andy did not provide any mitigation) and the report was updated to include all the evidence which I had reviewed. The report was also updated to include my conclusion, set out above, that Andy had understood that sharing the list was intimidating and that he had been acting in bad faith. My practice was then to review a final version of an investigation report and confirm that I was happy with it before it was sent out.”

[74]Mr Poole followed a similar process in regard to his investigation report concerning Mr Stead. We do not need to go into the detail of that process, but we record here that Mr Poole said in paragraph 42 of his witness statement that he “prepared an updated investigation report based on my conclusions and then I shared this with Mark Brown, ER Case Manager”, after which, Mr Poole said in paragraph 43 of his witness statement: “We finalised the investigation report”. Mr Stack’s reports

[75]In paragraph 37 of his witness statement, Mr Stack said that after his two meetings with Mr Parsley and Mr Wright, he “prepared a first draft of the investigation report for each” of them and then “shared” them with Ms Crawford. The following passage of that witness statement (paragraphs 38-42) was revealing of his thinking and why he sought evidence to support a conclusion which we thought was obvious. That conclusion was that the circulation among the union members of the list of employees seen for example at page 789 was highly likely to be intimidatory. It was highly likely to have a chilling effect on anyone who was thinking of breaking the strike because it would make them think that they might be identified to other members of the workforce as having broken the strike. Why did he need evidence to support that conclusion, we wondered, when it was so obvious, at least to us, especially against the background, about which the workforce of the respondent had been warned so explicitly and carefully in the FAQs passage which we have set out in its original red font in paragraph 20 above? In paragraph 39 of his witness statement, Mr Stack said in terms that he felt that he already had enough information to go to a disciplinary hearing: “I felt there was already enough to go to a disciplinary hearing for both of them, given that I had concluded they shared the lists, but what I felt was missing was more information on the impact that sharing lists of strike breakers had on people. I wanted to make sure that I had gathered as much relevant information as possible so that the disciplinary manager would have everything they needed.”

[76]Technically, or at least in theory, it was possible that members of the hourly-paid workforce at the port were not in practice concerned about being identified as having broken the strike. However, that was highly unlikely given the evidence before us. We return to that evidence when describing below (in paragraphs 84- 131) the thought processes of the decision-makers (Mr Warburton, Mr Lay and Mr Angira), but here (i.e. in the passage immediately below) we refer to the evidence of the respondent’s other witnesses (none of which was challenged and in any event all of which we accepted). The evidence of the respondent’s witnesses who were not involved in deciding whether or not the claimants should be dismissed, about the feverish atmosphere in the respondent’s workplace before and during the strike Ms Gleeson

[77]Ms Gleeson (whose surname was Welton in 2022) said this in paragraph 7 of her witness statement. “On a personal level, I was very concerned about the impact that the strike was having on the hourly port operatives. As I have relationships both personally and professionally within those areas, I saw firsthand how people were being affected by the strike. I knew generally, as well as through those relationships, that a lot of people didn’t actually want to go on strike and they wanted to come to work, for example if they needed the pay or if they disagreed with Unite’s position, but they were worried about people knowing that they’d crossed the picket line and how they would be treated at work after the strike.” Mr Poole

[78]Mr Poole said in paragraph 32 of his witness statement that after he had interviewed Mr Sochon and Mr Stead, he “thought there were some loose ends with the investigation so I asked Emma for some guidance on next steps, including if I should be speaking to anyone who had submitted a witness statement or if there were any actual employee complaints, even anonymous ones.” In paragraph 34 of that statement, Mr Poole said that he was subsequently “provided with copies of concerns raised after the investigation meeting, which included the following (p. 1749 to 1757): (a) An anonymised email dated 23 August 2022”. Plainly, that was inaccurate, because that email preceded Mr Poole’s investigation meetings with Mr Sochon and Mr Stead (see paragraphs 60 and 62 above). The same was true of the emails referred to in the following two subparagraphs of paragraph 34 of Mr Poole’s witness statement, i.e. subparagraphs (b) and (c). The other documents postdated those interviews somewhat, but part of one of those documents recorded things which had been said by employees before those interviews (that was on page 1757). So, the logic of the statement was questionable. However, here the important part of the witness statement was paragraph 35, where Mr Poole said this: “This confirmed my existing belief that lots of people had been concerned about coming into work. It was intimidating crossing the picket line during the strike, and we’d had lots of concerns from hourly paid and from staff about this. Given the concerns the employees had about the consequences from their colleagues if they were found to have crossed the picket line, it did not surprise me that the complaints were anonymised. It’s also a small and tight-knit network of people who work on the port, and lots of employees come from the local communities and know each other well and so I knew that it would have been difficult for those individuals to blow the whistle on those responsible.” Mr Stack

[79]After referring to part of the passage in red font which we have set out in paragraph 20 above, Mr Stack said this in his witness statement. “8. I felt it was clear to everyone that the Company regarded identifying people who chose to come into work during the strike as unacceptable misconduct which would expose them to intimidation. 9. I was aware that there was a lot of discussion about the FAQs and about acceptable behaviour around the Port in the lead up to the strike. As a manager, I was clear with anyone I spoke to that I supported people’s right to strike but that they had seen the comms and the Company was clear they would not tolerate any form of intimidation.” Mr Luck

[80]Mr Luck said this under the heading “Reports of leaked list and investigation into initial leak”. “50. I became aware on or around 22 August 2022 that a list of people who had come to work on the first day of the strike had allegedly been leaked and was being circulated amongst the workforce. I was also told that someone had reportedly been filming people crossing the picket line on the first day of the strike. 51. I don’t recall specifically how I was advised but given the gravity of the issue, I would have been briefed on the matter by Emma Crawford, Employee Relations Manager, to provide guidance on how to approach the situation. I was told the key details – that there was a list that had been photographed and that a screenshot of it being shared online had been sent into the Company, and that someone had raised concerns that a person was filming those driving into work. I was also informed that there were potentially 4 people involved but I wasn’t initially informed of their names. Given the concerns that employees had voiced about potential intimidation and the consequences for them of coming into work, I was greatly concerned about these developments.” The disciplinary “charges”

[81]The letters which stated the cases which the claimants had to answer were at pages 1160-1161 (for Mr Parsley), 1406-1407 (for Mr Sochon), 1719-1720 (for Mr Stead) and 1887-1888 (for Mr Wright). The charge for Mr Parsley, Mr Sochon and Mr Wright was this (with the one for Mr Sochon having “22nd August” rather than “22 August” in it). “You intended to create an intimidating and hostile work environment that has caused employees to feel threatened and/or unable to attend work throughout this period of industrial action. You did this by sharing an image of a list of non-striking employees with other employee/s which was reported to the Company on 22 August 2022.”

[82]The charge for Mr Stead was this. “You intended to create an intimidating and hostile work environment that has caused employees to feel threatened and/or unable to attend work throughout this period of industrial action. You did this by videoing employees as they entered the Port of Felixstowe on the 21st August 2022 using a GoPro camera.”

[83]We pause to say that the words “that has caused employees to feel threatened and/or unable to attend work throughout this period of industrial action” were in our view an unnecessary addition as far as the gravity of the alleged misconduct was concerned. Certainly, their inclusion gave the claimants’ representatives in the disciplinary hearings which followed, to which we now turn, something to dispute and Mr Brittenden a hook on which to hang many of his submissions. However, the words were relevant to the severity of the sanction which could reasonably be imposed for doing the things of which the claimants were accused. The disciplinary hearings

[84]Mr Warburton conducted the disciplinary hearings for all four claimants. He concluded that they should all be dismissed summarily. As far as we could see, no complaint of any procedural irregularity (as such) in the course of the disciplinary hearings was pressed by the time of closing submissions except that it was submitted by Mr Brittenden (in paragraph 48 of his written closing submissions) that “Mr Warburton undertook no further investigation in circumstances where this was obviously necessary in order to afford the Claimants a fair process.” The accuracy of the second sentence of the preceding paragraph above can be seen in what Mr Brittenden then said, in paragraphs 49- 57 of his closing submissions, which were about alleged omissions, which was this. ‘49. Aligned to this is a wholesale departure from the guidance in Linfood Cash & Carry Ltd v Thomson

[1989] IRLR 235

(at [20]). In particular, it is necessary to reduce the statements into writing, initially “without regard” to the fact that anonymity is to be preserved. It is “important” that the statement contains sufficient details of dates, times, or each observation or incident. None of that happened here, notwithstanding the resources open to R, namely a sizeable HR department (see s. 98(4)(a) ERA 1996). 50. It is also incumbent upon the investigator to at least test the credibility of the accounts given in order to ascertain whether this either “may tend to add or detract from the value of the information” provided. Further, it is also necessary to at least consider “whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle”. 51. These are the most elementary steps in any disciplinary process where anonymous evidence is to be relied upon. These steps are essential in order that “[f]urther investigation can then take place either to confirm or undermine the information given”. 52. In addition to the wholesale departure from these requirements, two final Linfood substantive safeguards were also bypassed by Mr Warburton, namely: 6. If it is to continue, then it seems to us desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information. … 8. If the employee or his representative raises any particular and relevant issue which should be put to the informant, then it may be desirable to adjourn for the chairman to make further inquiries of that informant. 53. In summary, it is clear that Mr Warburton undertook no further investigation at all. He ignored all of the points of challenge raised by or on behalf of the Claimants. In light of the points raised, this was unfair. No satisfactory explanation was provided by Mr Warburton as to why these points were ignored. However, this reflects R’s singleminded focus on securing the ultimate sanction. 54. Again, in the interests of proportionality, a few illustrative examples are relied upon:(1) Mr Sochon raised specific concerns in relation to (what is clear is a new addition) that the reporter felt intimidated. The point was expressly raised at paras. 31 - 32 [1605]: “… this person(s) had not made a statement to state that they had been intimidated or the effect it had had on them. PP do we know if they had been asked or approached and even if it was a legitimate claim[?]”. That was ignored. [Those numbered paragraphs were in the record of the disciplinary hearing concerning Mr Sochon, to which we return below.]

(2) At para. 34 [1605] the point was raised whether the List had been sent to the person who reported it (who rather than use it) held a grudge or a score to settle against Mr Sochon. This was an obvious issue engaging the principles considered in Linfood. Mr Warburton merely “noted” this point but did nothing to look into this.

(3) He too raised points in relation to the witness evidence relied upon (paras 42 - 45) [1606]. These points were either “noted” (para. 43) or “acknowledged” (para. 46). The hearing was adjourned for 39 minutes without any proper consideration of these points.

(4) Mr Parsley also raised numerous challenges to the evidence relied upon in his disciplinary hearing at paras. 53 - 71 [1265 - 1268]. In particular, at para. 55 the point was made that they need to know if the reporter had a grudge or “malicious intent” towards Mr Parsley. Mr Warburton ignored all of the points without any further investigation. He did not even check whether there was any grudge or seek to interview the reporter. See response at para. 89 [1270]. Mr Parsley queried how the statements were put together and the only reply he received was “as they are anonymous, they are not sure” [1267] (paras. 60 - 61).

(5) Mr Wright also made comments on the witness evidence relied upon. See [1967 - 71] (paras. 32 - 54). Mr Warburton ignored all of these points without any further investigation. 55. The ET is reminded of Mr Luck’s evidence. He was questioned around the lack of detail provided in the evidence and whether he accepted that the Claimants would have experienced difficulty in meaningfully responding to the evidence. He replied: my point is that if the claimants had been concerned about these statements then it would have formed part of the investigation and the outcome. 56. This did not happen. 57. It is also clear that evidence was taken into account which simply wasn’t shared with the Claimants, or included in the investigation reports. See in particular the oral evidence provided by Mr Stack and Mr Angira in relation to the conversations they had in the mess rooms. This constitutes unfairness if evidence was taken into account which was not written down or shared with the Claimants. The Linfood guidance applies to the same extent to the Appendices as other evidence.”

[85]Mr Warburton approached the disciplinary hearings with his own experience of the circumstances. That was inevitable, since the strike of 2022 and the circumstances surrounding it were an inescapable part of the experience of anyone working at the port. His evidence in his witness statement on that was as “6. In the lead up to the strike in August 2022, the mood was quite split in the mess rooms. There was tension between those who wanted to come to work during the strike for various reasons and the strong union supporters. I had overheard some of those union supporters speaking in the mess rooms about unity and ‘brothers in arms’. 7. At that time, I spoke to a number of people who wanted to come into work but were worried about doing so. Some were already a little intimidated to cross the picket line as they would be in full view of everyone there. I think they were worried about being ostracised because they had come to work during the strikes. 8. I know that this was an area of concern for senior management. We (management) had been briefed by senior management on the Company’s expected standards of conduct during the strike and what the workforce needed to be told about this. With other managers, I was then responsible for passing on those messages and briefing employees on the Company’s expectations. 9. We did this by speaking to employees in the mess rooms and also trying to catch everyone before they went out onto their shift. Where that wasn’t possible, we tried to do one-on-ones. There were 200 to 300 people on shift at any time, so you could never be sure that you spoke to everyone directly, so we ensured there were paper copies of the FAQs in the mess rooms as well as sharing them by email and on the employee app. The Company’s expectations were set out in these FAQs, including a clear warning about identifying employees working during the strike. 10. We were very clear that if they chose to strike then that of course wouldn’t impact them going forwards in terms of their employment at the Company, but that if people wanted to come in and work during the strike then they should be able to do that safely. The Company’s position was very clear that any bullying or intimidation of people who came in during the strikes would not be tolerated. There were lots of conversations happening in the mess rooms in the lead up to the strike about this and in my opinion people were clear about the Company’s position on acceptable behaviour.”

[86]Mr Warburton conducted disciplinary hearings with the claimants on 6 October 2022 (Mr Parsley), 7 October 2022 (Mr Stead and Mr Wright) and 27 October 2022 (Mr Sochon). The delay in the convening of the latter disciplinary hearing was a result of Mr Sochon receiving medical treatment and recovering from it. By the end of the hearing before us, it was clear that no complaint was being made about that delay, so we say no more about it and its causes. One result of the delay, however, was that Mr Sochon learnt of the dismissals of the other three claimants before his own disciplinary hearing was held. That, submitted Mr Burns, was why Mr Sochon put before Mr Warburton the written statement (which Mr Sochon read out during the disciplinary hearing) at pages 1627-1628, in which Mr Sochon said this: “I’d like to start this meeting by apologising profusely for the trouble I have caused.” He continued: “As I’m sure you are aware, I’m not a trouble maker but I did foolishly pass on that image of who came to work the previous night to a couple of people. There was no derogatory comments added and I would like to assure you that it wasn’t sent with any malice. I was caught up in the moment of being on strike and this image was being passed on all over the place.”

[87]Mr Warburton’s witness statement addressed in detail the manner in which he considered and determined the disciplinary allegations against all four claimants. In large part, he described what was recorded in the records of the hearings. Of course in large part those records spoke for themselves, and the witness statement added nothing material in so far as it simply repeated the content of those records, although if the records had been contested (which they were not) then Mr Warburton’s evidence that the records were accurate would have been material.

[88]Taking the decisions of Mr Warburton in the order in which they were made, the circumstances in which they were made and his reasons for them were as Mr Parsley

[89]On 5 October 2022, Mr Parsley raised the written grievance against the respondent at page 1261. It was in part about the fact that he was suspended, but of course the disciplinary hearing which was to happen the following day was going to result either in his dismissal or the ending of his suspension. The grievance continued: “I feel the reason for my suspension is unwarranted when I certainly haven’t bullied or harassed any individual(s). The list I supposedly sent was literally passed on hundreds of times to most of the hourly paid workforce, and although it’s not ideal, I feel personally targeted for unbeknown reasons. Allegedly I passed it on, but I can honestly say I cannot remember doing so and 100% it wouldn’t have been in a malicious way anyway. The list was something I believed had been sent out by the company and I admit I was sent it several times by different people. This is what I feel particularly concerned about, someone has sent that out, but those type of lists have been sent out numerous times by the company, the feeling amongst the workforce was almost a sense of disbelief that it had got out, not a dig at the people who went in, but that a possible supervisor had been so inept.”

[90]So, Mr Parsley was asserting that he was one of hundreds of people who had passed on the list of which there was an image at for example page 789. We consider the question of the relevance of that assertion in paragraphs 159 and 160 below.

[91]Mr Parsley was also asserting that a supervisor had been “inept” in putting that list up in what we concluded (from the document at page 793A to which we refer in paragraph 24 above) was the usual way. In effect, that was a complaint about putting temptation in the way of the hourly-paid workforce. However, the list could not have come into the possession of the strikers unless a non-striker had photographed it and passed it on to the strikers. In addition, the implied temptation arose through a supervisor acting in a manner which was the norm before the strike. Further, even the new procedure of (as stated in the email set out in paragraph 26 above) sending the relevant information by text was open to abuse in the same way as was putting up the same information on a notice board. In any event, we were satisfied that the grievance raised matters which were only relevant to the disciplinary hearing which was about to occur.

[92]That hearing was (we saw from the letter at pages 1160-1161) arranged to start at 11 o’clock in the morning of 6 October 2022. The notes of the hearing were at pages 1315-1325. Mr Parsley was represented by Mr Pemberton of Unite. The hearing adjourned at 11:40 (as shown by page 1322) and was reconvened at 12:02, at which point Mr Warburton said that he was adjourning the hearing to look into the matters that Mr Pemberton had raised at the hearing. The hearing resumed on 11 October 2022, and in paragraphs 89-99 on page 1323, Mr Warburton was recorded to have stated a number of things, including his decision that Mr Parsley was to be dismissed summarily, and why. The nub of the decision was in paragraph 98 on page 1324, which was in the following terms. “DW said it is his reasonable belief that in sharing the list of non-striking employees, his actions were done with the intention to intimidate or harass fellow workers and the evidence from workers shows that they were in fact intimidated so it is hard to see what the purpose of the actions could have been other than to intimidate others.”

[93]As EJ Hyams pointed out during closing submissions, it is not normal to say (and he had never heard anyone say) that they “reasonably” believed something. Rather, in common parlance, people say that they believe something. When EJ Hyams put it to Mr Burns that it was likely that Mr Warburton had been given those words to say by a member of the respondent’s HR team, and that the question whether the belief was reasonable was for the tribunal to determine, Mr Burns said that the use of the word was the result of good HR advice. EJ Hyams then pointed out that advice by a member of the HR team in this context was likely to be of the same sort as would be given by a lawyer, and that was likely to be about the way in which an employment tribunal was likely to see the situation. We return to the impact of the advice which led Mr Warburton to insert the word “reasonably” before “believed” in paragraph 137 below.

[94]Mr Warburton’s decision to dismiss Mr Parsley was formally confirmed in the letter dated 26 October 2022 at pages 1311-1314. At page 1312, there was this passage which focused on the question whether or not Mr Parsley intended to intimidate non-strikers by passing on the list in question. ‘I considered the representation that there was a lack of evidence to directly attribute bullying and intimidating behaviour to you. However, as detailed in Appendix 7 of your Disciplinary Pack, there were 3 witness statements submitted that confirmed individuals felt intimidated, due to names of nonstriking employees being shared. Firstly, an email dated the 23rd August 2022 confirmed that an individual no longer felt able to cross the picket line, and come into work, due to a list of non-striking employees being shared. This individual was concerned that he/she would receive a “torrent of abuse”, if he/she were to come into work. Secondly, an emailed [sic] dated the 26th August 2022 confirmed an individual felt unable to cross the picket line, due to fear of the “back-lash” he/she would receive. I felt it was reasonable to conclude that this individual was concerned that he/she would receive “back-lash” as they would be identified as coming into work, and this was due to employees becoming aware that a list of individuals crossing the picket line had been shared days before this email was received. Thirdly, an email dated the 29th August 2022 confirms before strike action commenced, individuals were made aware that names of “strike breakers” would be shared. After this had occurred, this individual was urged not to come into work and confirmed this had contributed to him/her feeling extremely anxious. In addition to this, Appendix 8 of your Disciplinary Pack references 3 further statements (statement 2, 3 and 6), which all raise concerns surrounding intimidation, being ostracised and non-striking employees being identified. Therefore, although I accept that none of these witness statement specifically name you as an individual, I feel that your actions have contributed to creating a hostile and intimidating atmosphere, as there is evidence to support that you did share a list of non-striking employees’ names, with another employee(s). This action has resulted in individuals feeling intimidated and this did prevent employees from feeling able to come into work throughout the period of industrial action. Therefore, although you were not specifically named, I feel you are responsible for causing intimidation, through the act of sharing the message in question.”

[95]However, Mr Warburton in his own mind separated out the question of the intention to intimidate and the question whether Mr Parsley’s passing on of the list had actually contributed to the intimidation of non-strikers. That was clear in part from the following paragraph on page 1313: “The expected standards of behaviour throughout the strike period were made clear to all employees, and therefore it is reasonable to believe you understood that the sharing of non-striking employees’ names was unacceptable. Therefore, I feel in sharing this document, you were in fact acting in bad faith and did so with the intention of identifying individuals who had crossed the picket line. The impact of your actions has created intimidation, fear and concern amongst the workforce, and this has been evidenced in the witness statements presented.”

[96]It was clear also from the fact that in cross-examination, Mr Warburton accepted that there was “no evidence that Mr Parsley intended someone to go on and intimidate anyone else”. In answer to the proposition that there was “no evidence before [him]” that any particular individual had seen the screenshot [which Mr Parsley had “shared”] or been intimidated by it, Mr Warburton (as noted by EJ Hyams) said this: “I agree that no individual had come forward and said so but in my opinion it had created a hostile environment in the port as news travels fast as I have alluded to earlier.”

[97]Accordingly, Mr Warburton had concluded that the sending on of the list was itself intimidatory. As noted by EJ Hyams, Mr Warburton also said these things:97.1 “In my eyes the sharing of the list was the threat to individuals; in my opinion.”

97.2 “In my view the fact that it was shared rather than who it was shared with would be intimidating. People were just talking about the list being shared; that was the intimidatory factor; they were just aware that the list had been shared.” Mr Wright

[98]Mr Wright’s disciplinary hearing was (we saw from the letter at pages 1887-1888) arranged to start at 10 o’clock in the morning of 7 October 2022. Mr Wright was also represented by Mr Pemberton, and Mr Pemberton raised similar points in support of Mr Wright to those which he raised in support of Mr Parsley. It is sufficient to say here that Mr Warburton’s conclusion was best seen in paragraph 69 of the notes of the hearing (the notes were at pages 1962-1973 and paragraph 69 was on the last page), which was in these terms. “DW said that although KW has not been specifically named in any of the complaints received, it is his reasonable belief that in sharing and commenting on the list of non-striking employees, KWs actions were done with the intention to intimidate or harass fellow workers and the evidence from workers shows that they were in fact intimidated so it is hard to see what the purpose of KWs actions could have been other than to intimidate others.”

[99]Mr Stead’s disciplinary hearing was (we saw from the letter at pages 1719-1720) arranged to start at 3 o’clock in the afternoon of 7 October 2022. The notes of the hearing were at pages 1807-1813. Mr Stead too was represented by Mr Pemberton. At the start of the hearing, Mr Stead put before Mr Warburton the statement at page 1788. The statement was in the following terms. “I Peter Stead on the 21/8/2022 went to the Port of Felixstowe picket line with my Gopro with the only intention of making a video blog of my personal experience of a picket line demo. I mainly use my camera on my motorcycle or family gatherings with my granddaughter, I enjoy the editing just as much as the filming. I have read through your allegations and I can see how it looks but I can honestly say I had no other motive than to make a video blog for myself. I’m not a vindictive or nasty person and this allegation has really messed me up mentally. I’ve never taken part in any industrial action like this before and I thought I was ok to film my picket line experience for my own personal use. I’m hoping we can put this behind us and get back to work.”

[100]Mr Warburton’s witness statement contained a summary, which for present purposes it is convenient to set out here, of the representations made by Mr Pemberton on behalf of Mr Stead: “Insufficient evidence37. Phil [i.e. Mr Pemberton] stated that he believed there wasn’t enough evidence to start an investigation and that such investigations should be thorough and unbiased in accordance with the Disciplinary Policy (p. 1810). He said that we needed to determine if Peter’s [i.e. Mr Stead’s] actions on the day were lawful or not.

38. His view was that the evidence of employees who were apprehensive about coming in to work during the strikes wasn’t enough and there was insufficient connection as the statements didn’t refer to Peter by name so the Company couldn’t attribute those concerns to Peter as they could apply to anyone who stood on the picket line (p. 1810). Filming is not illegal

39. Phil referred to the statement from John Whitby which said that it wasn’t unlawful to film in public, and Phil said that employment law shouldn’t supersede the law of the land and that workers have the right to picket lawfully (p. 1810). Footage was not shared

40. Phil also said that a problem only arises if the images are uploaded and that Peter hadn’t shared the video (p. 1811). Investigation of the Executive Team

41. Phil said that the Company must act in a way that is fair and consistent and that he would expect the Company to investigate allegations that members of the Executive Team had intimidated employees by filming them (p. 1811). I was aware that Peter had raised a grievance about the Executive Team but hadn’t seen the grievance. Phil also shared a copy of a photo in advance of the meeting which showed Clemence and Simon Mullet, Chief Financial Officer, speaking to employees on the picket line and Simon holding his phone (p. 1789 to 1790).”

[101]The most important representation was that there was insufficient evidence before Mr Warburton that members of staff driving onto the port had been intimidated by Mr Stead filming them (by pointing his GoPro camera at their windscreens) as they did so. In the following passage of Mr Warburton’s witness statement he described his analysis of that representation. “43. I considered Peter’s written statement that he submitted and that he said he had been filming the picket for a blog, and not people going to work. I remember that I was cynical as it didn’t make sense to stand by the entrance where the cars were coming in if you wanted to film the picket line for a personal video blog.44. I could see from the screenshot of the dashcam footage in the investigation pack (p. 1731) that Peter was standing in prime position on the island facing people as they were driving in and that the GoPro was pointing directly at the car. He appeared to be standing on his own and not with anyone or filming the picket. People coming into work at Dock Gate 1 would clearly see him and see the camera.

45. The angle that Peter was pointed at also doesn’t make sense if he was filming the picket or the demonstration. There is a screenshot from Google maps at p. 1126A of the Hearing Bundle which shows the roundabout. Looking at that image, the picket was on the section of grass on the left, the demonstration was on the roundabout shown on the right, and Peter was standing on the edge of the island opposite the picket. He was pointed at the cars driving in, from the angle that the image is showing and not the picket or the demonstration.

46. I thought that the statements in the investigation pack and the image of Peter with the camera were enough evidence to demonstrate a breach of policy. I accept that the statements didn’t name him in particular, but they showed that people felt intimidated and concerned about coming into work and I was satisfied that Peter’s conduct contributed to this.

47. Some of the people who had raised concerns had asked to remain anonymous which I could understand as there was a fear of backlash from Unite and its members, so people did not want to be identified as blowing the whistle on the union pressure.

48. I had in my mind when reviewing the statements the discussions I’d had in the mess rooms leading up to the strike and the real concerns people had about the backlash from their peers for coming in to work. The day Peter filmed was the first day of the first strike in over 30 years or so, and tensions were already high. If someone was driving in on day 1 and passing the picket and they saw a camera pointed at them, I understand absolutely why they would feel intimidated by that and they would worry about what would be done with the footage. News of filming the strike breakers spread quite quickly around the workforce and I had heard about it before I was asked to do the disciplinary. I think anyone would also feel intimidated and might reconsider coming to work if they thought they would be filmed.

49. I therefore believed that Peter had contributed to an overall intimidating and hostile environment which did prevent employees from feeling able to come into work, even though the evidence from individuals didn’t specifically refer to him by name.”

[102]Mr Warburton added in paragraph 54 of his witness statement, after saying that he had decided that (as with all of the other claimants) he concluded that Mr Stead had committed gross misconduct “under the Disciplinary Policy”): “I believed that Peter had pointed his GoPro at non-striking employees entering the Port to work during industrial action even if he hadn’t captured any film, and that this was intended to intimidate them and did intimidate them. I didn’t believe Peter’s account that he was just filming the picket line to create a vlog, I thought he was being dishonest when he said that. The screenshot from the dashcam showed him pointing the camera directly at the driver in the car, and the statements of Rob Angira and Alan Davies supported this.”

[103]Mr Sochon’s disciplinary hearing was (we saw from the letter at pages 1406- 1407) originally arranged to start at 2 o’clock in the afternoon of 6 October 2022. The letter at page 1528, which was dated 24 October 2022, instead of simply referring to the later date for the hearing of 27 October 2022, was in substance a repeat of the letter at pages 1406-1407 but with the date of 27 October 2022 for the hearing. Mr Pemberton attended the hearing as Mr Sochon’s representative.

[104]In paragraph 155 of his witness statement, Mr Warburton in effect summarised the position as it stood at the start of the hearing: “I reviewed the investigation report and all the appendices (p. 1408 to 1461), which included similar documents to those in the packs for Jamie and Keith. As with Jamie and Keith’s investigation reports, the most significant piece of evidence was a screenshot which showed someone had shared an image of a list of employees who came into work during the strike for the night shift on 21 August 2022 (p. 1417). At the top of the screenshot, it said the image had been shared by ‘Andy Sochan’.”

[105]In paragraph 160 of his witness statement, Mr Warburton said that he remembered “quite vividly that [Mr Sochon] was very apologetic in the meeting and seemed genuinely shocked that he was there.” Mr Warburton continued: “He had always been a very good employee.”

[106]Mr Warburton’s witness statement contained the following description of the representations made by Mr Pemberton on Mr Sochon’s behalf. ‘Intention and causal link167. Phil said that a disciplinary process could only be held if the individual had intent to cause harm and that Company hadn’t shown there was intent (p. 1604 to 1605). Phil also said that there was not sufficient causal connection between Andy’s actions and the evidence in the investigation report that other employees felt intimidated. Motivation of the person who reported Andy

168. Phil raised that Andy should know the identity of the person who reported him, so he could consider if that individual had a grudge against Andy (p. 1605). He referred to the investigation report, which said that the person who reported Andy to the Company had felt intimidated, and asked whether evidence had been gathered from that person (p. 1605). Emma Crawford confirmed in the meeting that the person had been identified but hadn’t wanted to provide a statement, whether it was anonymous or not, due to fear of the ramifications (p. 1605). Investigation of the person who originally shared the list

169. Phil also asked if the Company had investigated who had originally shared the list of non-striking workers and stated that the process was undermined if this was not done (p. 1605). He added that he felt this was entrapment of Andy (p. 1605). Insufficient evidence

170. Phil referred to statements included in the investigation pack as evidence that employees had felt intimidated and noted that one email predated the strike action. I understood that he was referring to the email dated 9 August 2022 which had been raised in previous disciplinary hearings. He added that he felt in the evidence pack there “appeared to be a lot of reaching” (p. 1605). I understood this to mean that he was referring to the same issues raised in previous disciplinary hearings, including the hearsay evidence from a customer and the record of employees flagging to HR that they had been blocked from Unite social media pages.

171. He argued that it was not sufficient to disregard this evidence as it “taints everything else” (p. 1605).’

[107]Mr Warburton’s evidence about his response to those representations was in paragraphs 173-179 of his witness statement. Given that the foundation of the disciplinary charges was a photograph which showed that Mr Sochon had sent on a photograph of the list of 20 employees in question, and that Mr Sochon had by the time of the hearing before Mr Warburton admitted that he had done that, we thought that the key paragraphs were the first two and the last of that series. They were in the following terms. “173. I reviewed the Company Policy Against Bullying and Harassment, which confirms that intent is not required for bullying to be established. It is sufficient to show the impact of the individual’s behaviour on others and there was clear evidence that employees had been intimidated. As set out in the outcome letter, I had reviewed an email received by the Company on 23 August 2022 where it was clear the employee didn’t want to come to work for fear of being identified on another list and an email dated 29 September where an employee had said: “I had heard comments from people in the mess room about “long memories” and names of strike breakers being found and published. This of course is exactly what happened.” (p. 1437). 174. I didn’t think it was significant that the evidence in the investigation report that showed employees felt intimidated didn’t refer to Andy by name. As set out above, in relation to Jamie and Keith, I concluded that Andy had contributed to an environment where people felt intimidated and were worried about coming into work so, although he wasn’t named in the statements, there was a sufficient connection between his actions and the evidence of people’s concerns in the investigation pack. ... 179. After I had considered each of the points above, I decided that Andy’s actions amounted to gross misconduct under the Disciplinary Policy. I didn’t accept Andy’s statement that he hadn’t understood what was appropriate as it was his first strike. He knew that the Company would have zero tolerance of bullying and harassment. Andy had confirmed that he had shared it and, although he had said that his actions were not malicious, intent was not required to establish bullying under our policy. Andy ought to have known that it was intimidatory and the impact on employees had been serious.”

[108]Mr Warburton’s oral evidence to us was consistent with the things which we have recorded in the preceding paragraphs above. We accepted all of Mr Warburton’s evidence set out above (i.e. from paragraph 85 onwards). Relevant things said by Mr Warburton in cross-examination about all four claimants’ cases

[109]When it was put to Mr Warburton in cross-examination that the content of paragraphs 42 and 46 of the disciplinary hearing notes, at pages 1812 and 1813 respectively, showed that he had concluded that Mr Stead had created some footage, Mr Warburton said this (as noted by EJ Hyams): “Whether he was recording or not was for me irrelevant; the fact that he was holding a GoPro and pointing it at people passing was creating an intimidating and hostile environment for those who wanted not to strike.”

[110]When it was put to him that there was “no evidence of intimidation”, Mr Warburton said this (as so noted but tidied up for present purposes; the rest of EJ Hyams’ notes to which we refer below are tidied up in the same way): “We had a lot of interaction with many people in the port before, during and after the strike and there was a lot of talk of people being intimidated by being filmed as they were crossing the picket line.”

[111]Mr Warburton subsequently said “I think the bad faith was actually standing there filming people crossing the picket line; that was bad faith.” The cross-examination continued with Mr Brittenden reminding Mr Warburton of the following sentence at the start of the final paragraph of the letter at page 1805, which was part of the letter dated 4 November 2022 in which Mr Warburton confirmed the decision which he had communicated on 7 October 2022 as recorded on pages 1812- 1813: “As shown in Appendix 11 and 12 of the investigation report, complaints have been received from employees who felt intimidated and threatened to not attend work during the period of industrial action and it is my reasonable belief that by filming non-striking employees cross the picket line, your actions greatly contributed to creating an intimidating and hostile work environment and were acting in bad faith against the Company.”

[112]Mr Brittenden then put it to Mr Warburton that Appendices 11 and 12 contained evidence of only up to 10 people, and asked him whether he was saying that that evidence supported that conclusion. Mr Warburton replied: “I suggest his actions did. As I said previously, being a front line manager here where we employ 1900 to 2000 people; I have been at the port for 23 years and it was unprecedented and people were talking about lists leaked and people being recorded coming into work and it had created an intimidatory atmosphere at the port.”

[113]Mr Brittenden then put it to him that none of the 10 people referred to in Appendices 11 and 12 referred to filming at all. Mr Warburton said: “I cannot recall if I am being honest.” Mr Brittenden said then: “Assuming that that is correct, none of them refer to filming or Mr Stead’s actions in filming, they are [that is to say, what they say is] irrelevant to the disciplinary charge which he faced?”

[114]Mr Warburton responded: “No. The port of Felixstowe is a unique place to work. I am ex-military. People down here have a tendency of not coming forward for fear of reprisals. We have been working on that as management but there was a general feeling in the workforce of a hostile and intimidatory environment. But people were very reluctant here to give statements or come forward. But in my opinion it [i.e. Mr Stead’s filming] contributed to a hostile environment.”

[115]Mr Brittenden then reminded Mr Warburton of what he had said in paragraph 57 of his witness statement. That was as follows. “I decided to dismiss Peter with immediate effect (p. 1813). I thought this was appropriate due to the severity of his actions and the Company position was clear that there would be zero tolerance of bullying and harassment of non-strikers. It was extremely important that people felt safe coming to work during a period of high tension, and as I’ve outlined above, my conclusion was that Peter had deliberately filmed people and in doing so he’d intended to intimidate people who were just coming to work.”

[116]Mr Brittenden then suggested to Mr Warburton that he had referred to “zero tolerance in that statement in many places” and Mr Warburton accepted that. Mr Brittenden then put it to Mr Warburton that he had so focused on the application of the principle of “zero tolerance” as stated in paragraph 57 of his witness statement that that focus had affected his approach to the evidence of mitigation on which the claimants relied. Mr Warburton’s response was to say “Absolutely not, no.” However, we saw that in paragraph 58 of his witness statement, he said this in relation to Mr Stead: “In my opinion, as it was gross misconduct, a spotless record or long service with the Company wouldn’t have reduced the sanction because it wouldn’t have outweighed the severity of his actions, but I don’t remember exactly what was said about Peter’s long service and clean record.”

[117]Mr Brittenden shortly afterwards reminded him of what he had said in paragraph 93 of his witness statement, which was this. “I spoke to Nick Luck, the HR Director, in this adjournment [in the hearing relating to Mr Parsley] as I wanted to check the Company’s position on whether sharing a list of strike breakers was taken as seriously as set out in the FAQs. Nick confirmed that if lists of non-strikers had been shared then this would be taken very seriously by the Company as there was zero tolerance of bullying and intimidation of non-strikers and all employees were aware of this before the strike. However, it was ultimately for me to decide whether the misconduct had happened as alleged and what the appropriate sanction would be.”

[118]Mr Brittenden then reminded Mr Warburton of what Mr Luck had said about that in paragraph 81 of his witness statement, which was this. “I understand that Dave Warburton, the disciplinary manager, recalls meeting with me after he adjourned the disciplinary hearing for Jamie Parsley to get the Executive’s position on how seriously we would take the alleged misconduct. I don’t specifically recall that meeting myself, but at the time the Company would have recently finished dealing with the second strike, and it was a busy time. Meeting with Dave to discuss the Executive’s view on this does sound like something that we would have done at the time though and I have no reason to doubt Dave’s recollection. I believe I would have said to Dave something along the lines of that if there was enough evidence to support a conclusion of gross misconduct then he shouldn’t shy away from making that decision and doing what he thought was the right thing and if that was dismissal then he should make that decision.”

[119]Mr Brittenden then put it to Mr Warburton that Mr Luck had given him “a signal or a cue that [he] would be expected to dismiss”. Mr Warburton said in reply: “Absolutely not; no. We were in unprecedented times. I just wanted clarity in my own mind on the decision. I wanted clarification from Nick on the company’s stance on the alleged sharing. He gave me no steer as such as to where we were going with this; it was ultimately my decision.”

[120]That exchange continued: “Q: There does not appear to be any discussion about mitigation, does there? A: No; I did not go to speak to Nick about mitigation, to be fair. Q: And to put the claimants’ case to you on this, it is right is it not that Mr Luck gave you a cue that the expected outcome would be dismissal and that would help the company to take back control and give a warning signal to anyone else who wanted to go on strike? A: No.”

[121]In the course of our deliberations, we found an at page 794E from Mr Shaun Real to an employee whose name was redacted. It was sent on 24 August 2022, and contained this passage. “HR have passed on a recent email you sent regarding intimidation and threats you received recently. I can assure we find this type of behaviour unacceptable and if armed with more information we would investigate fully. I have recently spoken with two of the shop stewards committee and explained our stance will be zero tolerance and anyone found to be threatening other individuals will be dealt with under our disciplinary policy which deems this type of behaviour as gross misconduct. We have also heard rumours of a list being drawn up, and although this is unconfirmed, this would be illegal and again any individuals would be dealt with accordingly.”

[122]That was a statement that if intimidatory behaviour was found to have occurred, including by the drawing up of “a list”, which must have meant a list of strikebreakers, then that would be treated as gross misconduct. We return in paragraph 166 below to that document and the evidence referred to in paragraphs 115-120 above. The impact of the strike on the decisions to dismiss

[123]As for the proposition that Mr Stead was dismissed because of his participation in strike action, Mr Warburton said this in paragraph 59 of his witness statement. “I am aware that Peter is alleging that my decision to dismiss was influenced by his decision to participate in industrial action. This is absolutely not the case. It did not matter to me at all whether Peter was on strike or not. Thousands of people participated in the industrial action. They were not disciplined because they hadn’t engaged in gross misconduct. Peter was dismissed for the reasons I have outlined above and the fact he participated in industrial action was completely irrelevant to my decision.”

[124]Mr Warburton made in paragraph 69 of his witness statement a statement to a similar effect about the impact of the strike as such on his decision that the other claimants be dismissed.

[125]In paragraphs 150-153 below, we state our conclusions on the reason for the claimants’ dismissals. In arriving at those conclusions we took into account(1) the evidence of Mr Warburton to which we refer in the two preceding paragraphs above about the impact of the strike on the dismissals and

(2) the evidence given by Mr Warburton in cross-examination to which we refer in paragraphs 109-120 above. The appeals

[126]The claimants all appealed against their dismissals. The appeals were conducted by way of review and were not rehearings. Mr Angira heard the appeals of Mr Sochon and Mr Wright, and Mr Lay heard the appeals of Mr Parsley and Mr Stead.

[127]As far as we could see, the only substantive point made by Mr Brittenden about the appeals was that127.1 “it was not appropriate for Mr Angira to have chaired Mr Sochon’s appeal. Unknown at the time, he had escalated the List shared by Mr Sochon to HR, and admitted to having a discussion as to how this should be addressed. See [788 - 89]. In one sense the unfairness was compounded.”; and

127.2 “Mr Angira confirmed to the ET that he considered other evidence not in the pack, i.e. from unspecified conversations in the Mess Rooms.”

[128]Mr Angira’s oral evidence to us was in part about what he had himself experienced in the Mess Rooms. He had himself on 28 August 2022 written a record of what had been discussed in the Mess Rooms on that day. We accepted the following passage of his witness statement about the relevance of the conversations in the Mess Rooms which he took into account in determining the appeals of Mr Sochon and Mr Wright. ‘47. There is a culture in the port of keeping your head down. This means that people are reluctant to bring matters to management’s attention but also that they don’t want to be seen not to ‘toe the line’ or to do something different to their colleagues for fear of the reaction of their colleagues or union reps or that it could ‘come back to bite’ them. 48. In terms of the impact of Andy’s actions and the concerns that had been raised by employees, I thought these had to be viewed in the context of the culture at the port and not in isolation. It is already very difficult for employees to decide to do anything that might be seen not to ‘toe the line’ for fear of how their colleagues might retaliate, whether that be coming to work during the strike or raising concerns with the Company about their colleagues’ conduct. While management have worked hard to improve this culture, this has taken significant time and the period of industrial action in 2022 was particularly charged. 49. In my discussions in the mess room before the strike, people were clearly conflicted about whether to come to work during the strike. I recall that some employees had made comments to me about their decision to participate in the strike along the lines of ‘my hands are tied’. I prepared summaries at the time of the feedback I and other senior managers were receiving from the workforce during our visits to the mess rooms, which include concerns employees raised to me about the consequences of coming into work during the strike. On 14 August 2022, I noted the following:• “Around half of the employees acknowledged that, a lot of intimidation was being observed on social media and that it was mainly targeted at those who were thinking of coming into work during the strike days. The UNITE Facebook page was singled out as ‘hosting’ some of this behaviour.

• Because of the above, all of the employees believed the turnout on the ‘strike days’ will be very low.

• All of the employees expressed their concern about the intimidation being observed on social media and that it was mainly targeted at ‘hourly paid’ who were thinking of coming into work during the strike days. [Senior managers] have advised the employees to provide as much evidence (screenshots) as they can, and that this was the only way of dealing with the behaviour. That said, no employee has come forward with evidence so far.

• All the employees enquired whether it would be possible not to schedule Relief Supervisors as Supervisors on the ‘strike days’ to protect them from being ostracised during, and after, the strike period. I said I would look into this.

• All the employees urged the company to increase CCTV coverage of the car parks during, and after, the strike period. Concern about potential ‘car vandalism’ by militant employees was the key driver.” (p. 669T – 669U) 50. My summary note of visits to the mess room in use on the final day of the strike stated that: “All the employees acknowledged that, online (social media) bullying and intimidation of potential dissenters (those thinking of crossing the picket line) took place before the 8-day strike commenced, and that this discouraged many employees from coming into work. They also acknowledged that UNITE were aware of the social media activities.” (p. 798A)’

[129]Mr Lay referred more briefly to the background to the acts of the claimants for which they were dismissed when, in paragraph 5 of his witness statement, he stated his own experience of the workplace before the strike, which was as ‘I recall that the feeling in the mess rooms at the time was very polarised between those who wanted to strike and those in two minds about it. There was real anxiety about the consequences of being seen to cross the picket line and I remember conversations with some individuals who felt they had no choice but to strike. My role was to ensure that any discussions remained professional. I put forward the Company’s view about the likely impact of strike action on our customers and business whereas the Unite representatives who were present would put the union side. I recall a particular discussion in the mess room before the strike where I was explaining to the employees during shift changeover that people who want to work are entitled to work and the Company will support them. One of the union representatives who was present at the time responded to the group by saying that employees could cross the picket line but he had a “long memory”. I reminded him that type of comment was not acceptable. He had said that in front of a number of people and it was that exact type of attitude that people were worried about. Robert Angira and I shared updates with the Executive team on the mood in the mess rooms and I summarised this conversation in an email to Robert Ashton on 10 August 2022 (p . 625A).’

[130]We saw that on page 625A Mr Lay recorded that he had “mentioned the use of Social media outlets to intimidate and bully individuals is unacceptable – the strike is a personal choice and coming into work may be the only choice some people have to survive”.

[131]In paragraphs 43 and 44 of his witness statement, Mr Lay said this about Mr Parsley’s case. “43. My view was that Jamie had shared that list around and clearly would have contributed to people being concerned about being retaliated against when people find out that they decided to work during the strike, especially when this was done in the polarised environment that existed at the port during the first strike in particular. 44. In terms of whether Jamie had intended his actions to have that effect, he had admitted to sharing the list, but he hadn’t been able to give me any reason for why he’d done that and I couldn’t see any reason other than to intimidate people. For those reasons I thought it was reasonable to conclude, as Dave [i.e. Mr Warburton] did, that he had intended to impact employees who were planning to cross the picket line and to intimidate or harass them.” Was there a valid comparator?

[132]One of the factors on which the claimants relied as showing that their dismissals were unfair was that the respondent had treated the situation of an employee who had revealed the names of other employees differently in that that other employee had not been dismissed, when the claimants were. That other employee was Mr Kevin Conroy. In his written closing submissions, Mr Brittenden said this about the circumstances and manner in which Mr Conroy was treated by the respondent. ‘110. Kevin Conroy. The Claimants are mindful of the evidence given by Mr Sochon to the effect that his [i.e. Mr Conroy’s] conduct in sharing both a list of workers and commercially sensitive information took place after the first period of strike action had ended (therefore did not involve sharing a list of non-strikers), as well as his acceptance that Mr Conroy’s case was dissimilar. Nevertheless, there are some matters germane to the fairness of the dismissals.111. He had no good reason for sharing this information. R appears to have been all too accepting of his excuse that he wished to impress an ex-girlfriend without any scrutiny. It is not immediately obvious how the sharing of this information would impress anyone.

112. Furthermore, Mr Conroy’s case is relevant to the motive or reason for dismissing the Claimants. It was expressly noted in his mitigation at [949] that: “Kevin’s actions in working through the strike demonstrate his loyalty and commitment to the company”. This finding was made without any interrogation as to why he did not strike, or whether he simply needed the money. Again, at [950] there is a reference to the fact that days before the event he had crossed the picket line. He was given the benefit of the doubt because he was loyal in attending for work during the strike. The same latitude was not given to the Claimants, precisely because they had gone on strike.’

[133]What Mr Conroy had done was to photograph with his mobile telephone the screens which he was using at the time, on which there was (we could see from the clearest version of the photographs, which was at pages 987 and 990) coincidentally a list of names. There was no question of the named people being strike-breakers because there was at the time no strike. The first of those two photographs contained no personal information about anyone, and was of a ship as shown on what, we could see from page 981 (which was an email from an Operations Manager in the respondent’s Container Division to Ms Crawford and a colleague of hers) the respondent called its “Terminal Operating System”. Mr Conroy was interviewed about the matter on 14 October 2022 and the notes of the interview were at pages 963-965. Mr Conroy’s explanation and the other things which he said in response to the allegation that he had committed a breach of the GDPR were on the second and third pages of those notes. We do not need to set them out here. It is sufficient to say that(1) we could see why the respondent had accepted Mr Conroy’s explanation for what he had done and

(2) we ourselves concluded that the circumstances of his case were materially rather different from those of the claimants. A discussion about aspects of the claims of unfair dismissal The filming by Mr Mullett of Mr Cheng speaking to persons on the picket line

[134]We have referred in passing in paragraph 100 above to Mr Mullett filming Mr Cheng speaking to striking workers and the argument of Mr Pemberton that if Mr Mullett was not disciplined for filming the strikers, then, since the claimants and others on the picket line and at the demonstration found that filming to be intimidatory, the claimants should not have been dismissed. In paragraph 115 of his written closing submissions, Mr Brittenden said this in that regard. “It was obviously relevant to the issue of whether or not the Claimants should be dismissed (perhaps more evident in Mr Stead’s case given the allegation that he faced). The fact that this was not considered at all is manifestly unfair and is indicative of double standards: one rule for the Executive (i.e. tolerated intimidation), and another for the Claimants.”

[135]We were sent the footage taken by Mr Mullett, and part of it was played at the hearing before us. Mr Stead was shown in that part. He was not apparently intimidated in the slightest at the time of the filming, and he was shown engaging in a gentle conversation with Mr Cheng. But more importantly, the footage and filming was not necessary to identify the strikers: they were the employees who did not attend work during the strike. The reason for the filming was stated by Mr Mullett in a witness statement which was made for the purpose of responding to the blacklist-related claims, but because those claims were withdrawn, Mr Mullett did not give evidence. We saw that in paragraph 11 of his witness statement, after stating the reasons why he and Mr Cheng had gone to the picket line and spoken to the employees there, Mr Mullett said this. “On the way to the picket line, Clemence [i.e. Mr Cheng] and I had briefly discussed and agreed that I should take some footage while we were there. My purpose in taking the footage was just in case we needed a record of us speaking to employees so that there was no room for doubt about what had been said or the fact that we’d been seen at the picket line. It was particularly important at the time to have proof that we’d been present, given all of the rumours that I mention above about senior management being absent and on holidays. I had also understood that Clemence was happy to be filmed and to be seen to be on the picket line for the same reason.”

[136]Even though we did not hear from Mr Mullett, so that that statement was not tested in cross-examination, it was on its face a good explanation for Mr Mullett’s “taking the footage”, as he put it. The impact of HR advice

[137]In Ramphal v Department of Transport

[2015] IRLR 985

(also reported as a Digest at [2015] ICR D23), HHJ Serota QC said this (at paragraph 55 of the EAT’s judgment): “In my opinion, an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability in so far as the advice went beyond addressing issues of consistency. It was not for human resources to advise whether the finding should be one of simple misconduct or gross misconduct. I accept the submission that the finding by Employment Judge Etherington that Mr Goodchild had simply reassessed the situation in the light of advice from human resources, and was entitled to conclude as he did, was not permissible on the evidence because it does not explain the impact of the advice that went beyond what was permissible, nor does it explain why he changed his position from believing there was no evidence of dishonesty, when the advice he received from human resources appeared to be limited to the standard of culpability for the purposes of gross misconduct. There does not appear to have been any fresh evidence to justify his change of heart. A further example of an attempt to influence views on culpability is in the letter of 25 September 2012, in which Mr Goodchild is being invited to take a more critical view of the alleged breaches of the five-mile rule and of the fact that, while a single mistake might be understandable, a mistake at least three times ‘seems at best careless and again merits comment at the decision’. There is also the suggestion that Mr Ramphal’s statement, that he had not appreciated that he should not use a hire car for personal use, demonstrated a question about integrity and trust, which again might be regarded as an attempt to influence Mr Goodchild’s views on culpability.”

[138]In paragraph 56 of that judgment, HHJ Serota QC said this. “I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.”

[139]Those things had to be read against the background of what occurred in that case and why the EAT allowed the appeal. They were summarised in the following way in the following words of the headnote. “The tribunal had erred in failing to determine whether human resources had exerted improper influence over the investigating/dismissing officer’s decision to dismiss Mr Ramphal for misconduct. In West London Mental Health NHS Trust v Chhabra the Supreme Court held it was an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of the case investigator. Had the employment judge been aware of that decision, he would have wanted to investigate carefully the influence of HR on the investigator, Mr Goodchild, and to explain the reasoning behind Mr Goodchild’s dramatic changes of view after representations from HR, which clearly went beyond giving advice on procedure and clarification and appeared to have led to the reshaping of Mr Goodchild’s views, carrying him on a journey from a conclusion that there had been no gross misconduct, with an appropriate sanction of a written warning, to one of gross misconduct and a recommendation for, and then a decision of, summary dismissal.”

[140]Here, we concluded that Mr Warburton (and in fact also Mr Angira and Mr Lay) had in effect rejected the HR team’s approach in that they had concluded that their own experience of the situation before and during the strike was such that what the claimants had done was bound to intimidate. In addition, and in part because of that factor, we concluded that all of those three decision-makers arrived at their conclusions without any influence, or at least without any inappropriate or undue influence, from any member of the HR team, including Mr Luck. In the case of Mr Angira, he had in fact initiated the process in regard to the list shown on for example page 789 by sending the email on page 788 including the sentence “This is potentially inappropriate conduct.” We have in paragraph 127.1 above set out Mr Brittenden’s submission that as a result of sending that email, Mr Angira should not have heard Mr Sochon’s appeal. In our view, given(1) what we say in the opening words of paragraph 85 above,

(2) what we say in paragraph 160 below, and

(3) for example the evidence of Mr Angira which we have set out in paragraph 128 above, the sending by Mr Angira of the email at pages 788-789 did not make it inappropriate for Mr Angira to hear the appeal in the unusual circumstances of this case. The allegation that the suspensions were a knee-jerk reaction

[141]Relying on what Elias LJ said in paragraph 71 of his judgment in Crawford v Suffolk Mental Health Partnership NHS Trust

[2012] IRLR 402

, in paragraphs 6 and 7 of his written closing submissions, Mr Brittenden submitted that141.1 the decision to suspend the claimants ‘was a classic “knee jerk” reaction’; and

141.2 that decision showed that the respondent intended to treat the claimants “as a group”.

[142]That proposition was supported by142.1 the accepted fact that “No complaints had been received by any of the 20 named on the List on 21 August”, and

142.2 the proposition that “there was no evidence of any bullying or intimidation in the previous 9-day period.”

[143]The absence of complaints from the 20 employees named in the list shown at for example page 789, which we will call from now on “the leaked list”, did not mean that those employees were not intimidated. But more importantly, we found the evidence which we have set out in paragraphs 101, 109-114, 128 and 129 above about what we will call the emotional landscape at the workplace before and during the strike of 21-29 August 2022 to be good evidence (it was not in fact challenged, but for the avoidance of doubt, we accepted it) that(1) the acts of all four claimants for which they were dismissed, that is to say, (a) the filming by Mr Stead and (b) the sending on of the leaked list, were self-evidently intimidatory, and

(2) the claimants must have known that. We could not see how they could not have known that what they did was bound to be intimidatory. We also failed to see how there could be any exculpation of the sort to which Mr Brittenden referred in paragraph 15 of his written closing submissions or what more by way of investigation of the things which the claimants were accused of doing could reasonably have been done. In any event, we did not conclude that the suspension of the claimants was a knee-jerk reaction.

[144]We pause to say that it appeared to us (as EJ Hyams said during the hearing before us) that the respondent’s HR team (possibly with the benefit of legal advice) had accepted the proposition that there was a need to prove that one or more fellow employees were in fact intimidated in order to make good the allegation that the claimants had committed gross misconduct. After deliberating, we came to the clear view that that proposition was wrong. That was because in the circumstances of this case, what the claimants did was in our view bound to be likely to have had an intimidating effect and can have been done for no reason other than to intimidate. Proof that that conduct had intimidated was, we thought, likely to be relatively hard to find if the conduct was in fact intimidatory but in any event, the evidence before the respondent at the time of the claimants’ suspensions was ample justification for the suspensions.

[145]However, we accepted that if there had been evidence before the respondent that no employee had found(1) the circulation of the leaked list or

(2) reports of the filming of strike-breakers as they drove onto the port to be intimidatory, or even if there had simply not been any evidence that any employees had found those things to be intimidatory, then that would have been relevant to the question whether it was within the range of reasonable responses of a reasonable employer to dismiss the claimants. To that extent, the gathering of evidence from members of the workforce about the effect on them of their knowledge that a list of 20 named strike-breakers had been circulated on social media and that someone had on the first day of the strike been filming strikebreakers as they drove onto the port, was apt. The proposition that a disciplinary charge cannot fairly be departed from, or alternatively must all be found by the employer to be well-founded before the employee can fairly be dismissed

[146]Mr Brittenden relied on the decision of the Court of Appeal in Strouthos v London Underground

[2004] IRLR 636

as showing that dismissing the claimants for intimidatory behaviour when there was no direct link between that behaviour and any sense of intimidation by any member of the respondent’s workforce was unfair because(1) the disciplinary charges all alleged in effect that there had been such a link, and

(2) it was accepted by Mr Warburton that (as we record in paragraphs 96 and 110 above) there was no such link.

[147]In that regard, Mr Brittenden relied on what Pill LJ said in paragraphs 12, 38 and 41 of his judgment in Strouthos, and in particular147.1 “… it does appear to me to be basic to legal procedures, whether criminal or disciplinary, that a defendant or employee should be found guilty, if he is found guilty at all, only of a charge which is put to him” (at [38]).

147.2 “… Where care has clearly been taken to frame a charge formally and put it formally to an employee, in my judgment, the normal result must be that it is only matters charged which can form the basis for a dismissal” (at [41]).

[148]We agreed with Mr Burns’ submission in response, which was that what was necessary was that(1) the claimants knew what they were accused of doing and

(2) they were not found to have done something of which they were not accused. In paragraph 57 of his and Ms Barsam’s written closing submissions, with which we also agreed, they said this. “The Claimants cite cases including Strouthos v London Underground

[2004] IRLR 636

where an employee was dismissed for dishonesty without the allegation being put. All the cases relied on (Celebi, Coxon, etc) are ones in which the dishonesty was not properly alleged or particularised. In this case dishonesty was not any part of the charge only whether they intended to expose strike breakers to intimidation in bad faith or whether there was some good faith, innocent explanation for sharing the list (or filming the drivers crossing the picket line).” Our conclusions on the claims of unfair dismissal

[149]Returning to the issues which we state in paragraphs 10 to 14 above, we came to the following conclusions. The reason for the claimants’ dismissals

[150]The reason for the claimants’ dismissals was that they had done the thing of which they were accused, namely in the case of Mr Stead filming strike-breakers as they drove onto the port, or at least appearing to do so, and in the case of the other three claimants sending on the leaked list. In coming to that conclusion we concluded that Mr Warburton genuinely believed the claimants to have done those things. We also concluded that in coming to that belief, he was not influenced inappropriately within the meaning of Ramphal by the approach of the respondent’s HR team. While there was strong evidence that Mr Warburton accepted some of that team’s advice (such as the fact that he said, as we record in paragraph 92 above and discuss in paragraph 93 above, that he reasonably believed that it was the intention of the claimants to harass and intimidate fellow employees), we concluded that his decision that the claimants should be dismissed was his and his alone. Equally, we found that(1) the decisions of Mr Lay and Mr Angira were theirs and theirs alone, and

(2) Mr Lay and Mr Angira were not inappropriately influenced by the respondent’s HR team to come to their decisions to reject the claimants’ appeals.

[151]We concluded also that the fact that the claimants had been on strike had nothing whatsoever to do with their dismissals. That was because151.1 there was no evidence from which we could draw the inference that the fact that the claimants had been on strike was to any extent a motivating factor behind their dismissals;

151.2 the claimants were four of over a thousand employees who had gone on strike, but the other employees were not dismissed; and

151.3 Mr Warburton’s real reason for dismissing the claimants was that they had done the things of which they were accused as stated in paragraph 150 above.

[152]That of course meant that the claim of automatically unfair dismissals contrary to section 238A(2) of TULR(C)A had to fail, since the reason or principal reason for the claimants’ dismissals was not that they had taken part in protected industrial action. Rather, it was their conduct within the meaning of section 98(2)(b) of the ERA 1996.

[153]For the avoidance of doubt, in arriving at the conclusion which we state in paragraph 151.1 above, we153.1 accepted that the circumstances of Mr Conroy were materially different for the reasons stated in paragraph 133 above;

153.2 took into account our conclusions stated in paragraphs 143 and 144 above that the decisions to suspend the claimants were not the result of a knee-jerk reaction but were justified by the evidence before the respondent at the time of the suspensions;

153.3 concluded that the failure to complete the investigation of Mr Grimwood to which we refer in paragraphs 43-51 above was because the respondent had concrete evidence against the claimants and did not want to press the employees who had participated in getting the photographs at pages 789 and 794H before the respondent because of those employees’ apparent and understandable desire to remain anonymous; and

153.4 that failure to complete the investigation of Mr Grimwood revealed at best from the point of view of the claimants a difference in treatment between employees who had sent on the leaked list, all of whom were culpable; it was not a difference between those who had taken part in protected industrial action and those who had not done so. Was the investigation carried out into the claimants’ conduct in each case one which it was within the range of reasonable responses of a reasonable employer to carry out?

[154]The investigation carried out into the claimants’ conduct here had to be seen in the light of the following facts:154.1 there was objectively good evidence in the photographs at for example pages 789, 794H and 1684B that the claimants had done that of which they were accused;

154.2 Mr Stead accepted at the start of the hearing conducted by Mr Warburton (see paragraph 99 above) that he had been using a GoPro camera at the start of the first day of the strike; and

154.3 all of the respondent’s workforce (including the claimants) were keenly and in our view inevitably aware of the fraught industrial relations situation and the impact which the things which the claimants were accused of doing was likely to have.

[155]The introduction by the respondent’s HR team into the disciplinary charge of the allegation that what the claimants had done had in fact intimidated employees resulted in the respondent collating the existing evidence and in some cases seeking out further evidence about the reported impact on members of the respondent’s workforce of the knowledge of the leaked list and the filming (or apparent filming) of strike-breakers driving into the port. The claimants could not do any more than respond by seeking to undermine the cogency of that evidence, but the claimants had, and took, a full opportunity to do that.

[156]The disciplinary charge against the claimants was not departed from by the respondent dismissing the claimants for something of which they were not charged. Rather, if there was a valid criticism of the respondent, its decisionmakers (Mr Warburton, Mr Angira and Mr Lay) found that what the claimants had done had in fact “caused employees to feel threatened and/or unable to attend work throughout this period of industrial action” not because there was evidence that one or more of those employees had in fact felt threatened or had felt unable to attend work during that period, but because what they had done was (given the decision-makers’ own knowledge) bound to intimidate fellow employees. We could not see what was wrong with coming to that conclusion for that reason in the circumstances of this case. We add that (as indicated in paragraph 85 above) in our view it was impossible for the decision-makers not to have that knowledge, and that whoever (of the respondent’s organisation) was given the task of deciding whether the claimants should be dismissed was going to have that knowledge.

[157]We concluded that it was not outside the range of reasonable responses of a reasonable employer to decline to widen the investigation to find out who else had sent on the leaked list given the desire for anonymity to which we refer in paragraph 153.3 above. That was not least because, if it was the case, as it was asserted by the claimants, that other employees had also sent on the leaked list, then that would not have affected the claimants’ culpability. That was because in our view any participation in the dissemination of the leaked list was in itself highly culpable and, given what we say in paragraph 154.3 above, the claimants knew that. The fact that the claimants themselves offered nothing to help the respondent find out who else had sent on the leaked list was relevant in a minor way, in that it might be thought to affect the equity of the assertion that more should have been done to find out who else had sent on the list. However, that was in our view only a minor peripheral factor. The key factor in this regard was that an investigation to find out who else had sent on the leaked list was not going to result in any diminution in the claimants’ culpability.

[158]We also concluded that the principles in Linfood Cash and Carry did not require the respondent to investigate for example whether anyone had a grudge against any of the claimants, if only because the primary evidence against the claimants was the photographs to which we refer in paragraph 154.1 above and because of the factors to which we refer in the rest of that paragraph. In addition, because of those factors, we concluded that the claimants well knew what they were accused of doing.

[159]We also rejected the proposition that the claimants had done no more than pass on what was already in the public domain, and in the case of Mr Wright, at the same time comment on the situation, so that they had not by sending on the leaked list contributed to the intimidation caused by the leaked list being circulated. The claimants put no evidence before us to show that the leaked list itself was in the public domain. Even if they had relied on the fact that (as we record in paragraph 26 above) it was said in the document at page 794 that “POF users” had been informed by email that “a list of employees who worked in tugs Sunday night has now been made public on social media”, those quoted words suggested that POF users had merely been told of the existence of the list, not what the list was and whose names were on it. If that was the case, then sending on the list and commenting on it was still going to be intimidatory.

[160]In addition, circulating the leaked list only to a closed group of dedicated strikers who had not previously seen it was going to increase the chance of the list being circulated to others who were not so dedicated, which would be intimidatory. Equally, sending on the list to fellow employees who were reluctantly on strike would have been wrong even if those fellow employees had already seen it, because that would have reinforced the chilling effect of the knowledge that strike-breakers who had not already been identified might in the future be identified to the rest of the workforce. Similarly, although the respondent’s workforce by then knew that a list had been leaked, the members of that workforce who were not participating in the strike were likely to find receiving a copy of that list intimidatory.

[161]In any event, the claimants did not say that they had seen the email to “POF users” to which reference is made in the email at page 794 which we have set out in paragraph 26 above. Nor did they rely on that email as showing that the leaked list itself (as opposed to knowledge that there was a leaked list) was in the public domain. Nor did anyone tell us whether a POF user included an employee who worked at the port.

[162]In all of the circumstances, we were unable to conclude that the respondent had failed to carry out an investigation of the sort which it was within the range of reasonable responses of a reasonable employer to carry out. Were there reasonable grounds for concluding that the claimants had done what they were accused of doing?

[163]We concluded that there were indeed reasonable grounds for concluding that the claimants had done the things of which they were accused and for which they were dismissed, namely in the case of Mr Stead filming (or at least pointing a GoPro towards) persons driving onto the port in the morning of the first day of the strike and in the case of the other three claimants sending on the leaked list. We could not see how, given the factors to which we refer in paragraphs154.1 and

154.2 above, we could logically come to any other conclusion. We add that what the police said to Mr Stead about the filming was in our view not, as claimed in paragraph 20 of Mr Brittenden’s written closing submissions, “critical to a fair investigation”. That was not least because the police were not Mr Stead’s employer and in any event,

(1) the police’s concern could properly only have been about whether or not Mr Stead was committing or had committed a criminal offence, and

(2) that was not a relevant factor here.

[164]We concluded that whether or not the claimants had by doing the things to which we refer in the first sentence of the preceding paragraph above intended to intimidate was more obviously relevant to the final issue in relation to the claims of unfair dismissal, to which we now turn. However, we record here that for the reasons which we state in paragraph 168 below, we concluded that there were reasonable grounds for concluding that the claimants, by doing the things to which we refer in the first sentence of the preceding paragraph above, intended to intimidate employees who were minded not to go on strike, or to remain on strike. Was the sanction of dismissal within the range of reasonable responses of a reasonable employer?

[165]We could not see any basis on which we could have concluded that the claimants’ dismissals were outside the range of reasonable responses of a reasonable employer, in particular, but not only, given the factors to which we refer in paragraph 154 above, i.e. including what we say in paragraph 154.3 above. In any event, we ourselves came to the clear conclusion that the claimants’ dismissals were within that range.

[166]We add that we concluded on the evidence before us that Mr Warburton did not simply move from the conclusion that the claimants had committed gross misconduct to deciding that they had to be dismissed. That was because we concluded that the concept of “zero tolerance” on which Mr Warburton was crossexamined as we describe in paragraphs 115-120 above was not applied by him as a rule. We concluded that it was open to the respondent here to state that it had a policy of zero tolerance of intimidatory behaviour in relation to the strikes which took place in 2022. That was because it was an assurance to staff who did not want to strike that the respondent would take disciplinary action against any employee who committed such behaviour. The severity of the sanction for the behaviour was in our view not determined by the policy of zero tolerance, since in our judgment that policy was not intended to be read by the respondent as a requirement that an employee be dismissed. However, given the document at page 794E to which we refer in paragraph 121 above, we could see that there was a strong presumption that anyone who was found to have acted in an intimidatory way would be dismissed. Nevertheless, we found as a fact that Mr Warburton could see no mitigation for each claimant’s conduct for which he decided that that claimant should be dismissed. We observe that length of service and prior good conduct are not mitigation as such, but in any event we concluded that Mr Warburton took them into account because we accepted his evidence in that regard which we have set out in paragraph 116 above.

[167]Mr Brittenden’s written closing submissions included this paragraph (number 78). “Alternatively, the lack of malice or intent is an obvious factor which has a strong bearing in mitigation. There is a significant difference between someone sharing a List with the positive intent to encourage intimidation at one end of the spectrum, and someone who acts without thought and positively lacks any such intention. There is simply no evidence that Mr Warburton took this mitigation into account (either in the dismissal letter or in his witness statement).”

[168]We observe here that proving malice or intent is like proving any other mental element which is denied: difficult. Such a mental element usually has to be inferred from the other evidence. That was the case here. Mr Warburton in our view reasonably concluded that the sending on of the leaked list was done with at least knowledge that it would be intimidatory, even if it merely added – even in only a small way – to the weight of the intimidation already in existence because of the prior leaking of the list. He interpreted that knowledge as meaning that there was an intention to intimidate. He, as did Mr Angira and Mr Lay, concluded that there could have been no innocent reason for sending on the list, and in our view that was a conclusion to which it was within the range of reasonable responses of a reasonable employer to come.

[169]For the avoidance of doubt, we concluded that the respondent’s disciplinary and harassment policies did not have the effect that it was outside the range of reasonable responses of a reasonable employer to dismiss the claimants for conduct which was committed by them outside their usual workplace and while they were not at work. That was because those policies plainly had to be read as being applicable to conduct which was committed outside work as well as at work if it was sufficiently closely connected with work. That was in part because of the bullet point which we have set out in paragraph 41 above. It was also because, given the authorities concerning vicarious liability for, for example, harassment outside the workplace such as Chief Constable of Lincolnshire Police v Stubbs

[1999] ICR 547

, the respondent plainly had a reasonable interest in being able to discipline employees for conduct which was committed outside the workplace. In fact, the claimants’ conduct here was closely connected with their work and (as far as Mr Stead was concerned) their workplace. The claims of wrongful dismissal

[170]So far, we have not referred to evidence before us which was not before the decision-makers (Mr Warburton, Mr Angira and Mr Lay) at the time when they made their decisions. That evidence included the dashcam footage to which Mr Smith referred in the email which we have set out in paragraph 35 above. We saw that footage. We agreed with what was said in Mr Burns and Ms Barsam’s written closing submissions about the acts of Mr Stead, who, during the hearing before us for the first time said that the footage had been automatically deleted when he unplugged the GoPro at home. That did not make sense to us, given that the GoPro could have taken footage in the open only if it were battery-driven, which was in our view the only way in which it could practically work. We saw that in paragraph 18 of their written closing submissions, Mr Burns and Ms Barsam submitted that Mr Stead had ‘suggested somewhat inconsistently and nonsensically that the footage had automatically deleted when the Go Pro was “unplugged”.’ The whole of that paragraph was cogent. It was as follows. ‘Mr Cheng and Mr Mullett spoke to some of the people on the picket line and asked some if they worked for the Respondent. A video taken by Mr Mullett shows Mr Cheng speaking to Mr Stead and asking his name (he says “Pete”) and asking if he can take a photo with Mr Stead, to which Mr Stead agrees. Both Mr Cheng and Mr Stead are shown as smiling and friendly, as was Mr Parsley. Mr Stead’s evidence was that this interaction was not intimidating but caused “bad feeling” and made him feel nervous such that he thought he should delete the footage he had filmed earlier. He also suggested somewhat inconsistently and nonsensically that the footage had automatically deleted when the Go Pro was “unplugged”. Mr Stead also said in evidence that the conversation with Mr Cheng was “reasonable” and that he “can’t say there were bad feelings there.”’

[171]In paragraph 63 of Mr Burns and Ms Barsam’s written closing submissions, they said this. ‘It is notable that Mr Stead was seeking to film without detection by the Respondent or Port Police. The photographic evidence showed Mr Stead positioning his camera in front of his body, not obvious to the managers and police positioned behind him. Mr Angira also witnessed Mr Stead concealing his camera in his Hi-Vis jacket after being spoken to by the supervisor. Mr Stead accepted that his outer garment was commonly referred to as a “Hi-Vis jacket” at the Port. It is therefore unsurprising that the criticism of Mr Angira’s evidence made at the appeal hearing was not persuasive. There was a reasonable belief in bad faith.’

[172]We agreed.

[173]As for the question of the sending on of the leaked list, by the time of the hearing before us, all three of the other claimants, namely Mr Sochon, Mr Parsley and Mr Wright, accepted that they had done that. They also all, albeit reluctantly, accepted that it was likely to be intimidatory, although that was only of peripheral importance given our finding stated in paragraph 154.3 above.

[174]Were the things that the claimants had now indubitably done breaches of the implied term of trust and confidence? Yes. They were. In arriving at that conclusion, we took into account the fact that it can (as EJ Hyams pointed out during closing submissions) be a repudiation or a repudiatory/fundamental breach of the contract of employment to compete in one’s own time with one’s employer. That conclusion can be seen in the decision of the Court of Appeal in Hivac Ltd v Park Royal Scientific Instruments Ltd

[1946] 1 All ER 350

, the correctness of which has not, as far as we could see, been doubted despite the fact that it was a decision only on the question whether “the appellant company had made out a prima facie case of breach of the employees’ obligation to, serve them with good faith and fidelity, which was an implied term in the contract of service” which, the Court there concluded, it had. In conclusion

[175]For all of the above reasons, none of the claimants’ claims succeeded, and they were all dismissed. Approved by