Mr J Linden v Norfolk Fire and Rescue Service/Norfolk County Council: 3301452/2024

EMPLOYMENT TRIBUNALS

Case No 3301452/2024

Between

Mr J LindenClaimant

Norfolk Fire and Rescue Service/Norfolk County CouncilRespondent

Before

Employment Judge Mr. A Spencer

In person for claimant

Mr G. Baker (instructed by counsel) for respondent

Date 5 February 2026

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The complaint of breach of contract in relation to notice pay is not wellfounded and is dismissed.

[2]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.

[3]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[4]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

REASONS

[1]The respondent is part of a local authority and provides fire and rescue services in the Norfolk area.

[2]The claimant was continuously employed by the respondent from 11th July 1991 until he was dismissed on 10th September 2023. At the time of his dismissal the claimant was a station manager at the respondent’s King’s Lynn fire station. The claimant presented his claim form on 1st February 2024 after a period of ACAS early conciliation from 4th December 2023 to 15th January 2024.

[3]The claims arise from an incident on 14th June 2023 when the claimant is alleged to have behaved aggressively and inappropriately towards a civilian. The civilian complained that the claimant took his mobile phone from him and threw it in nearby undergrowth. The claimant was disciplined and dismissed for gross misconduct. The claimant says that his dismissal was both substantively and procedurally unfair. He also asserts that he was a disabled person at the material time because he had PTSD and that his dismissal amounted to unlawful disability discrimination.

[4]The Claimant makes the following complaints:(a) unfair dismissal;

(b) discrimination arising from disability;

(d) breach of contract (notice pay).

[5]The claims and the issues for the tribunal to determine are set out in the case management summary/orders prepared following a preliminary hearing before Employment Judge Davey on 19th September 2024. The issues were amended slightly at the outset of the hearing before us in two respects:(a) The list of issues identified that one issue for us to determine was whether the dismissal was a proportionate means of achieving a legitimate aim. This was raised in defence to the discrimination claim. However, the list of issues did not identify the legitimate aim(s) relied on by the respondent. The respondent identified those aims about ten days before the hearing began. We determined at the outset of the hearing to add these to the list of issues. The claimant objected to this. However, the question of legitimate aim(s) was an issue that we would need to determine and was identified as such in the original list of issues. In the circumstances, both the tribunal and the claimant needed to understand what the respondent’s position was in this regard. It was disappointing that the respondent had not identified and rectified the omission earlier but there was no significant prejudice to the claimant in clarifying these matters. He had sufficient time to prepare and it was in his interests to understand the respondent’s position before the hearing began. Ultimately, he accepted that these were legitimate aims. It was not a contentious point.

(b) The “something arising” in consequence of the claimant’s disability for the purposes of his claim under section 15 Equality Act 2010 was clarified and amended from paragraph 6.2.1 of the original list of issues. This was done by agreement. It was clarified that the “something arising” was an alleged propensity on the part of the claimant to overreact and/or to react in a more extreme manner when threatened. This was said to be in consequence of his PTSD.

[6]These reasons relate to the issues concerning liability only. We confirmed at the outset of the hearing that we would consider remedy (if applicable) after giving judgment on liability. Witnesses

[7]For the claimant, we heard evidence from the claimant himself and his former partner Kirsty Grand. Ms. Grand accompanied the claimant to his disciplinary hearing.

[8]For the respondent we heard evidence from:(a) Anthony White, the respondent’s Assistant Chief Fire Officer who presided over the claimant’s disciplinary hearing;

(b) Geoff Connell, Norfolk County Council’s Director of Digital Services. Mr Connell chaired the claimants appeal hearing;

[9]The witnesses gave evidence under oath or affirmation. They confirmed the truth of their written statements. We had the benefit of seeing their evidence tested under cross examination and the opportunity to put questions to the witnesses ourselves. Documentary evidence/submissions

[10]We considered the contents of a substantial hearing bundle, written statements from each witness, a chronology prepared by the respondent (which was not agreed), a written opening note from the respondent’s counsel and written closing submissions from the respondent’s counsel. We also viewed two video recordings. On day four of the hearing we were provided with four audio recordings of telephone calls together with transcripts of the recordings.

[11]We also heard oral closing submissions from the claimant and from the respondent’s counsel.

[12]We gave the claimant an opportunity to provide further written closing submissions about the four audio recordings/transcripts as he had not had a chance to consider these before giving his oral closing submissions. He provided these before we began our deliberations.

Findings of fact

[13]There is a great deal of detail in the documents in this case. There are a great many issues upon which the parties disagree. However, our task is not to make findings about all such issues. We restrict out findings of facts to those required to determine the issues identified in the List of Issues (as amended).

[14]We reminded ourselves that the applicable standard of proof is the so-called “balance of probabilities”. In other words, if the parties dispute a fact we need to consider which account of events is more likely to be correct. We do not need to be satisfied that something is 100% correct. We merely need to be satisfied that something is more likely than not to be the case.

[15]The respondent is a statutory authority with responsibility for fire and rescue services in Norfolk. It is part of the local authority for Norfolk.

[16]The respondent is a substantial organisation in its own right with more than 800 staff. Further, it can draw on the substantial resources of the local authority in terms of administrative, legal and HR support.

[17]The claimant has post-traumatic stress disorder (PTSD). He also has anxiety and depression. He has struggled with mental health issues throughout most of his life because of an abusive childhood and traumatic events experienced both in his personal life and his work with the respondent.

[18]The issue of disability was conceded by the respondent. The claimant gave a disability impact statement earlier in the proceedings in which he set out the impact his PTSD has on his day to day life. It is of note that he does not refer to a propensity towards impulsive or angry reactions (or overreactions) to stressful or threatening situations.

[19]Although the point was not dealt with in any detail in witness evidence the contemporaneous documents suggest that in about 2017/2018 there were issues with the claimant’s anger management and aggressive behaviour toward management. This appears to have prompted both disciplinary action and a referral to occupational health to inform the disciplinary process. In particular:(a) In October 2017, the respondent referred the claimant for an occupational health assessment. The report confirmed that the claimant was suffering from symptoms of post-traumatic stress and that he also had severe anxiety and moderate depression. The author of the report was unable to diagnose post-traumatic stress disorder and recommended a further medical assessment.

(b) The claimant underwent a psychological assessment in December 2017. The resulting report identified that the claimant felt devalued and unappreciated. This led to anger and frustration which in turn led to problems with his line manager and problems managing interactions in the working environment. The author of the report recommended up to sixteen sessions of psychological intervention. The author took the view that with such intervention the claimant would be better able to manage disagreement or conflict.

(c) The claimant undertook therapy as recommended. An interim report was produced in late March 2018 after nine sessions. This included work on regulating anger in the moment and work on communication skills to reduce the likelihood of escalation. The report identified that one of the principal areas of further work was around managing conflict and situations in which the claimant felt anger. The report identified that this work had been successful. The claimant was demonstrating a much greater ability to consider his actions and not to act so quickly because of feelings of anger;

(d) The claimant received a disciplinary warning in June 2018 for behaving abusively towards a station manager and other members of the service. This was found to be a breach of the standards of behavior in the respondent’s code of conduct. The behavior was considered serious enough to amount to gross misconduct. However, taking into account mitigating circumstances, the sanction was reduced to a first and final written warning. This would remain on record for three years and would be disregarded for disciplinary purposes after 18 months.

(e) A further report produced in September 2018 recorded that the therapy undertaken by the claimant had been successful. No further clinical work was required. There was further work to be done regarding the claimant’s employment. This was to undergo mediation with his line manager and to settle into a new role. The contemporaneous correspondence indicates that the outcome of the mediation was positive.

[20]The claimant had a standard occupational health assessment in April 2021. He was assessed as fit to continue work as an operational firefighter. No issues were identified.

[21]By 2023, the claimant was employed as a station manager based at King’s Lynn fire station. This is a senior role in which he managed four stations. He had a mix of operational and management responsibilities. He would attend some operational incidents depending on the level of seriousness. He managed sixty or more members of staff including recruitment and development.

[22]The claimant completed over 32 years’ service prior to his dismissal. He had worked in various roles. He developed a wealth of knowledge and experience. He received several commendations and awards. He was devoted to his role and to the fire service.

[23]The claimant’s most recent written statement of terms and conditions is somewhat out of date. It dates to 2016 when the claimant worked as a watch manager. The statement refers to the respondent’s grievance and disciplinary procedures as “directly affecting the claimants’ terms and conditions of employment.” The claimant was subject to a contractual requirement to uphold the respondent’s Code of Conduct - Standards of Conduct. The statement also confirms the claimant’s notice entitlement was 12 weeks given his length of service. It also expressly stated that the notice period would not apply in the event of summary dismissal for gross misconduct.

[24]The claimant’s experience (which was unchallenged by the respondent) was that since the pandemic there has been a tangible change in the attitude of the public toward uniformed services including the fire service. It is not uncommon for members of the public to ignore instructions from firefighters intended to protect their own safety, to directly challenge firefighters often physically and verbally and to walk through safety cordons. At some stage before July 2023, the claimant submitted a paper to the respondent’s management in response to this issue. He proposed that firefighters be provided with body worn cameras to provide protection. We were not provided with this report in evidence. However, we accept that the claimant raised these concerns. He referred to this in cross examination. It is also mentioned in an occupational health report from July 2023. The claimant did not identify training in conflict resolution as a solution to this problem.

[25]In recent years, the claimant and his work colleagues have had to deal with self-proclaimed social media “auditors.” These individuals attend sites and public spaces to film emergency workers, often uploading the content to social media platforms. Some aim to generate online content by behaving aggressively and obstructively, seeking to capture negative responses with a view to posting this online. It is possible to monetize the results through social media channels such as You Tube.

[26]One particular social media auditor who was active in the King's Lynn area was known to the claimant and his work colleagues. The individual has been named in the press and appears to court publicity. His name is Mr. Evans. Mr. Evans was known to the claimant and to the respondent for his challenging behavior. We were shown a video of Mr. Evans at an incident unrelated to this case. We understand that he filmed the incident and posted the video online. In the footage he behaves in a challenging and abusive manner toward police officers who are seeking to move him away from an incident to which the emergency services had been called. His behavior is aggressive, abusive and challenging.

[27]The claimant was aware of Mr. Evans and the significant challenges he presented. For example, the claimant sent an e-mail to his work colleagues on 19th January 2022. Mr. Evans had behaved in a threatening manner toward a work colleague and had threatened to attend the King's Lynn fire station to demand an interview. The claimant asked his work colleagues to take measures to ensure the site was secure and advised them as to how they should behave professionally given that Mr. Evans routinely filmed any interactions.

[28]No routine or specific training is given to fire service staff about dealing with conflict management/resolution. However, staff at a command level (which included the claimant) are subject to reassessment every two years in which their competencies are assessed. This includes “stress testing” skills and competencies by putting commanders into challenging simulated situations and monitoring and assessing their performance. This includes the use of “role players” (i.e., work colleagues playing roles to simulate challenging behaviors that may be faced in the real world). For example, role players may play the role of a member of the public who behaves in a challenging way. This process can inform and identify training needs.

[29]On 14th June 2023, an incident occurred at the site of a heathland fire near King’s Lynn. The claimant attended the incident. There was an altercation between the claimant and Mr. Evans. We have seen video footage of the incident. The footage is filmed from a forward-facing dash cam situated in the mobility scooter used by Mr. Evans. The mobility scooter is an enclosed scooter in which Mr. Evans sits in a cab. In the footage, Mr. Evans’ vehicle is driving toward the scene of the fire towards an area covered in smoke.

[30]We watched the video (which has audio). The following can be seen and heard:(a) The incident occurs on a narrow path with high vegetation on both sides;

(b) Mr Evans stops his mobility scooter on approach to the area covered in smoke;

(d) As he approaches Mr Evans, the claimant is heard calmly and politely to ask Mr Evans to turn round and go back down the path (i.e. away from the fire and smoke). As he does so, the claimant moves alongside the mobility scooter to talk to Mr Evans. In this position he is out of shot of the dash cam as he is to the side of the vehicle.

(e) Mr Evans responds, saying that he is “press” and is “taking videos for my channel”.

(f) When the claimant politely repeats the request to move, Mr Evans declines saying, “it doesn’t matter, I am legally allowed to do it” and “it’s all publicly accessible”

(g) The claimant then politely and calmly asks Mr Evans once more to go. Adding that he could always get the police to move him on.

(h) At the mention of the police, Mr Evans sounds more agitated and more aggressive than before – he starts to say “You can get the police to come out and I’ll tell them…”

(i) At this point, sounds that are consistent with a scuffle are audible and the picture rocks as if the mobility scooter is being moved slightly. Mr Evans is heard to say, “get off my phone!”.

(j) The claimant then moves back into shot, walking away from Mr Evans and back down the path towards the scene of the fire. In doing so his arm can be seen moving across his body in a movement which ends with his arm raised before lowering it again;

(k) When the footage is watched carefully at slow speed an unidentifiable small black item appears to fall from the air close to where the claimant’s arm had been extended and apparently falls towards dense vegetation;

(l) Mr Evans immediately gets out of his mobility scooter, following the claimant along the path and is heard to say, “give me my phone”. He follows the claimant along the path and again demands the return of his phone.

[31]We have seen only the footage that Mr. Evans chose to place online. This shows only what Mr. Evans wants the viewer to see. It is a continuous piece of video footage. However, it does not capture the “before and after.” Specifically, it does not capture:(a) an exchange between the claimant and Mr. Evans in nearby location which took place a short while before the incident shown in the footage; and

(b) the footage ends before a further exchange with the claimant which took place immediately after the incident described above.

[32]We understand that Mr. Evans also filmed these incidents. We have no footage relating to these incidents. However, we accept the claimant’s account of these incidents (see below). Further, Mr. White accepted in evidence that he too accepted the claimant’s account of what happened in these missing sections.

[33]We also accept the claimant’s account that during the incident, Mr. Evans pulled out an object and pushed it towards the claimant’s face. More likely than not this was his phone. Mr. Evans had come to the incident to film it. He routinely used his phone to film such incidents. He routinely filmed emergency workers particularly when they were giving him instructions that he did not like. It is highly likely that he was pulling out his phone with the intention of filming the claimant.

[34]On the evidence before us (including the video footage), we find it more likely than not that the claimant grabbed Mr. Evans phone from him when it was thrust towards him and immediately threw it away into the nearby vegetation. This is consistent with:(a) The arm motion which can be seen on the video footage;

(b) The object that can be seen falling immediately after the claimant’s arm motion

[35]Mr. Evans made a complaint about the incident. In his complaint he alleged that the claimant had taken his phone out of his hand and thrown it somewhere.

[36]The respondent’s chief fire officer, Ceri Sumner emailed senior staff the following day on 15 June 2023 and directed that the matter should be investigated. The recipients included Peter Rowe and Anthony White. In her e-mail Ms. Sumner indicated that the most likely response to Mr. Evans’ complaint would be to offer him payment for a new phone as a goodwill gesture and to say that the matter would be investigated internally. The e-mail concluded by saying “Pete [Rowe] will not take statements from crew".

[37]Mr. Evans complaint was resolved shortly after this by making him a payment of £300 for the reported value of his phone.

[38]The incident was reported in the Eastern Daily Press under the headline “Norfolk fireman investigated for throwing away man’s phone”. Whilst comments posted online by readers do not accurately reflect the public response to the incident, it is clear that many of those who felt strongly enough to post comments were aware of Mr Evans. Many of those who posted comments were critical of Mr Evans. However, the video was described as “a film …. which appears to show him [the claimant] throwing a member of the public’s phone over a hedge during a heated confrontation at the scene of a fire”. It is likely that this caused reputational damage to the respondent.

[39]Mr Evans posted his footage of the incident online.

[40]Peter Rowe was appointed to undertake a disciplinary investigation. He undertook the investigation and produced a detailed report. The scope of the investigation is clear from report. The evidence gathered appears in the numerous appendices to the report. This included obtaining the respondent’s incident log, the dashcam footage, the record of the complaint from Mr Evans, the relevant policies and procedures, interviewing the claimant and obtaining his account of events, obtaining the accounts of several other firefighters who attended the incident, a map of the site and photographs of Mr. Evans mobility scooter. This was collated into a 14 page disciplinary report accompanied by multiple exhibits. Mr. Rowe concluded that there was sufficient evidence to suggest that the claimant took Mr. Evans’ phone and threw it into the undergrowth. He recommended disciplinary action.

[41]Mr Rowe’s investigation did not include the following:(a) Seeking to interview Mr. Evans about the incident;

(b) Seeking to obtain the missing video footage from Mr Evans (i.e. the “before and after” sections of the incident);

(d) Obtaining medical evidence after the claimant suggested that his PTSD may have been a factor in his behaviour;

(e) Obtaining relevant phone records/recordings. For example, the recording of Mr Evans raising his complaint by phone and recordings of internal call records discussing the complaint. We were provided with these recordings during the course of the hearing.

[42]It took Mr Rowe about two months to complete the investigation and submit his report. This timescale exceeded the appropriate timescale under the respondent’s own policies and procedures.

[43]The claimant was not fully suspended while the procedure ran its course. However, he was removed from operational duties with the public.

[44]The evidence available to the respondent as a result of the investigation included:(a) The video evidence referred to above.

(b) The claimant’s written account of events. He gave a detailed account of the incident. He confirmed that shortly before the index incident, he and his colleagues had an earlier interaction with Mr Evans in which the claimant had politely asked Mr Evans to move back to a safe area. Although Mr Evans had moved away somewhat, he had disobeyed the instruction and remained in the coned area. The claimant had not taken the matter further as he did not want to get embroiled in challenges from Mr Evans. This earlier interaction was not shown in the footage posted online by Mr. Evans. The claimant confirmed that he was aware of Mr. Evans’ dashcam. He confirmed that he then encountered Mr. Evans again. This was the incident in the video footage. He said he had approached the vehicle, was standing alongside it and had bent forwards and slightly down toward Mr. Evans to speak to him. The claimant said that he could not see Mr. Evans holding a phone or anything else in his hands. He said that he had politely asked Mr. Evans to move away from the scene of the fire as he was in the smoke plume and that Mr. Evans had declined to move stating that he was from the press and was allowed to be there. The claimant said that he had told Mr. Evans that he would call the police and at this point Mr. Evans became agitated. Mr. Evans became more aggressive and he said “you can get the police to come out and I will tell them..… “. At this point, the claimant said that Mr. Evans reached across with his right hand to the area of his left hip before suddenly swinging his arm back and thrusting an object up toward the claimant’s face. He said that Mr. Evans “lunged forwards towards me.” The claimant said that he felt in immediate danger and reacted by blocking and pushing the object away with his hand whilst at the same time standing upright and turning to walk away along the narrow grass verge to create some distance. After watching the video footage numerous times, the claimant accepted that rather than pushing the object away he may have “scooped it up into the air.” However, he said that this was not how he recalled what had taken place. He described his reaction as “an impulsive reaction to Mr. Evans suddenly thrusting something at me which all happened in the space of around two seconds. I had no time to process what was happening or to think about how to react. In that moment I believe the fight or flight response has kicked in.” The claimant had no recollection as to what the object was that was in Mr. Evans’ hand.

(c) Handwritten notes from Jo Sinclair, one of the firefighters on site with the claimant during the incident. These are dated 29th June 2023. Ms. Sinclair did not witness the key incident between the claimant and Mr. Evans. However, she confirmed that later Mr. Evans came back past the fire engine saying something like “he took my phone - I'll get him done.”

(d) An unsigned typewritten note of the account of Neil Dack (another of the firefighters who had been at the incident with the claimant). Mr. Dack did not witness the key altercation between the claimant and Mr. Evans. He was close by and saw the claimant walking away from Mr. Evans’ mobility vehicle immediately after the incident. He confirmed that he saw Mr. Evans on foot, shouting and following the claimant. Mr. Dack gave a more detailed account about the aftermath. He confirmed that he spoke to Mr. Evans immediately after the incident who told him that the claimant had stolen his phone. Mr. Dack confirmed that the claimant emptied his pockets to prove that he did not have the phone. Mr. Dack spent a few minutes looking for the phone but was unable to find it. He confirmed that Mr. Evans was very angry.

(e) An unsigned typewritten note of the account of Dan Batch (another of the firefighters who had been at the incident with the claimant). Mr. Batch did not witness the incident between the claimant and Mr. Evans either. However, he too was close by as he heard raised voices. He could hear Mr. Evans shouting at the claimant to return his mobile phone. He confirmed that the claimant stated that he did not take the phone and did not have it. The claimant had emptied his pockets to prove this. Mr. Batch confirmed that Mr. Evans was very aggressive and that Mr. Dack was “brilliant in calming Mr. Evans down.” Mr. Batch said that a short while later Mr. Evans had returned to the site with his girlfriend who used a phone to call Mr. Evans’ phone to try to locate it. The phone could not be located despite a search and Mr. Evans using a tracking app to try to locate it.

(f) An unsigned and typewritten account from William Smart (another of the firefighters who had attended the incident). Mr. Smart did not witness the altercation between the claimant and Mr. Evans either. However, he heard shouting coming from the footpath. He went to assist Mr. Batch. Mr. Evans was raising his voice saying that someone had taken and thrown his phone in the bush. Mr. Smart assisted him in the search for the phone which could not be found.

(g) The notes of an investigation meeting between Peter Rowe and the claimant on 17th July 2023. [208]. The claimant accepted that the notes of the interview are an accurate and fair record of the interview. During the interview, the claimant was given another opportunity to give his account of events. He did so at length. He confirmed again that at the point Mr. Evans had become agitated he had grabbed something with his right hand in the region of his left hip. The object was then thrust towards the claimant’s face as Mr. Evans lunged towards him. Again, the claimant said that he had no idea what the object was but knew that Mr. Evans was unpredictable and felt in danger. He knew that he needed to get away and put his hand out to block the movement and to create space between himself and Mr. Evans as he was in a restricted space between the vehicle and the nearby undergrowth. The claimant accepted that he may have scooped up the object which was thrust towards his face as an impulsive reaction to the feeling of threat. He said that this was a reactive and instinctive response where there was insufficient time to process what was happening or to think how to react. Again, he described this as a “fight or flight” action. The claimant also explained that he had been diagnosed with PTSD in the past and that one of the symptoms of PTSD is hyperarousal where a personal threat could easily startle him.

[45]The stress of the situation and the length of time taken to conduct the investigation was taking its toll on the claimant’s mental health. The respondent made a further referral to occupational health. This was to seek further advice about the claimant’s health including whether he was fit to continue work and participate in an investigation interview. The claimant reported to the occupational health practitioner that he had remained calm throughout the incident on 14th June 2023 and that it was only when he was physically threatened that he reacted. He reported that his reaction was to move away from the threat. The author of the report said that it was “unclear whether this was something that anybody else would have done in the circumstances with a knowledge of this individual or whether there was some contributing factor from his previous traumatic experiences.” An assessment by an experienced clinical psychologist was recommended to explore whether the claimant required further treatment. However, there was no medical reason as to why the claimant could not continue with his alternative duties or participate in an investigation interview.

[46]During the occupational health interview, the claimant gave his account of the incident on 14th June 2023 once again. He said that when he informed Mr. Evans that he needed to turn back or he would call the police, he became agitated and aggressive and reached for something which he brought rapidly toward the claimant’s face. The claimant recalled pushing his hand to fend the object away and immediately moving off. The claimant also gave his view of the video footage and acknowledged that there was movement that could be consistent with him either moving his hand against vegetation or potentially releasing an object.

[47]The claimant prepared a lengthy response to the disciplinary investigation reports and evidence. This was an 18-page document with twenty-two appendices.

[48]Mr Rowe’s investigation had begun on 15th June 2023 and concluded on 17 August 2023 two months later.

[49]The claimant was invited to a disciplinary hearing by letter 23 August 2023. The disciplinary allegation is recorded in the letter as: “On the evening of Wednesday 14 June while attending an incident at Harding Pits in Kings Lynn as Level 2 Incident Commander, you took a mobile phone from a vulnerable member of the public without their consent and threw it into a bush. The telephone was not recovered and this resulted in the member of the public reporting a complaint to NFRS Control later that evening and then on Thursday 19 June posting a video recording of the alleged incident on YouTube where it has attracted negative public attention”

[50]No charge of dishonesty was put to the claimant in the letter.

[51]The letter confirmed the claimant’s right to be accompanied to the hearing by a union representative or work colleague. It confirmed that the respondent did not intend to call witnesses but the claimant had the right to call witnesses if he wished to. The letter was accompanied by a copy of the investigation report. The letter also confirmed the possible disciplinary sanctions that might be considered. This included summary dismissal.

[52]The venue for the disciplinary hearing was changed at the claimant’s request.

[53]The disciplinary hearing took place on 15th September 2023. Mr. White presided over the hearing. Cheryl Underwood accompanied him to provide HR advice and support. The investigating officer, Mr. Rowe was present. The claimant attended with Miss Grant as his companion. We have read the minutes of the meeting which both parties acknowledge are accurate. The meeting lasted from 10:00 am to about 5:10pm (with breaks). This included a period of about two hours for Mr. White to consider his decision.

[54]The meeting reconvened at 16:58 when Mr. White confirmed his decision reading from prepared notes made during the adjournment. He identified the key question for him was whether the claimant did or did not throw Mr. Evans’ phone. He confirmed that the primary evidence relied on was the video footage. He concluded that the language and tone used by the claimant when approaching Mr. Evans was appropriate. He noted that matters had clearly escalated at the mention of the police. He concluded that the claimant had taken the phone and thrown it away. He concluded that this was not an involuntary action as the claimant had suggested. He described this as implausible and that the evidence “leans towards an intentional action.” He referred to the coverage of the incident in the local media and online having a negative impact on the reputation of the respondent and eroding public trust. He also confirmed that he had concluded that the claimant had been dishonest about his actions. He considered that summary dismissal was a reasonable response in the circumstances.

[55]Mr. White wrote to the claimant on 19th September 2023 to confirm his decision to dismiss the claimant. The letter records that Mr. White concluded that the claimant took Mr. Evans mobile phone without consent and threw it into a bush. He did not consider the claim of involuntary action to be a credible explanation. He concluded that the claimant had demonstrated aggression by grabbing and throwing the phone which was particularly concerning given that Mr. Evans is a vulnerable person. He said that he had taken into account the claimant’s history of PTSD and hyper arousal but concluded that this was an intentional act rather than a reflexive one as the claimant had described. Mr. White also confirmed that the coverage of the incident in the local media and its online dissemination negatively impacted the reputation of the respondent, eroding public trust and confidence in the service. He concluded that the allegation was sufficiently serious to be regarded as gross misconduct. Mr. White considered that summary dismissal was an appropriate sanction given the seriousness of the issue and the lack of trust in the claimant. He confirmed that he had considered the claimant’s length of service and contribution toward the respondent over the years as mitigating factors. However, he concluded that the appropriate sanction was dismissal, nevertheless. The letter confirmed the claimant’s summary dismissal with effect from 15th September 2023 and confirmed the claimant’s right to appeal against the decision.

[56]The claimant appealed against his dismissal by letter dated 24th September 2023. His main grounds of appeal were:(a) A defect in the procedure. He complained that the investigation was insufficiently thorough citing: (i) the fact that Mr. Evans and the witnesses had not been interviewed. Nor had signed statements been taken from them; (j) still photos from the video footage had been been obtained but not made available; (k) no full unedited version of dashcam footage was obtained from Mr. Evans; (l) the decision to make a compensation payment to Mr. Evans prejudiced the entire process.

(b) The wrong decision had been reached. The evidence was not clear enough to support his guilt;

(d) He also sought to rely on what he described as new evidence that had come to light since the disciplinary hearing. He said that closer analysis of Mr. Evans’ dashcam footage suggested that when Mr. Evans followed the claimant back down the path after the phone was allegedly taken, Mr. Evans was carrying what was believed to be a knife in his left hand with the blade exposed. This was said to justify the claimant’s perception that Mr. Evans posed a threat to his safety.

[57]The claimant made no mention of PTSD being a factor.

[58]The claimant was invited to an appeal hearing to be chaired by Geoff Connell. Again, the claimant was offered the opportunity to be accompanied by union representative or work colleague and the opportunity to call witnesses.

[59]The appeal hearing took place on 27 November 2023. It was chaired by Geoff Connell with advice from Julie Fisher. Mr. White was present. The claimant attended with former station manager, Dean Lacey as his companion.

[60]The appeal hearing was conducted as a review rather than a rehearing.

[61]The minutes of the appeal hearing are an accurate record of the hearing.

[62]During the meeting, the claimant was given ample opportunity to put his case. He did not assert that his conduct was affected by his PTSD.

[63]Mr. Connell considered the claimant’s appeal. His letter to the claimant dated 29 November 2023 records his reasons for refusing the appeal. Conclusions and applicable law

[64]Taking each claim in turn, we set out our conclusions. Our overall decision as to whether to uphold the claims was a unanimous one. However, we did not agree on all issues in arriving at those decisions. We have identified the conclusions that were not unanimous and set out the position of the majority and minority of the tribunal panel. Breach of Contract

[65]The tribunal's jurisdiction to determine a claim for breach of contract arises under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

[66]There is no dispute that the claimant:(a) has the right to bring a complaint of breach of contract;

(b) had a contractual entitlement to receive 12 weeks’ notice of dismissal;

[67]The key issue for the tribunal to determine is whether the claimant was guilty of conduct that was so serious that the respondent was entitled to dismiss him without notice. That requires conduct on the part of the claimant that is a repudiatory breach of contract (i.e., conduct going to the root of the contract). We must form our own view on the available evidence as to whether the respondent has proven that the claimant was guilty of such a breach.

[68]On the evidence before us, we find on the balance of probabilities that the claimant did grab Mr. Evan’s phone and throw it away during the index incident. Our full findings as to what happened are set out in our findings of fact above.

[69]That conduct is plainly misconduct. That misconduct so serious that it was gross misconduct. Taking a member of the public’s phone without his consent and throwing into undergrowth is gross misconduct.

[70]It follows from this that the respondent was entitled to summarily dismiss the claimant and the complaint of breach of contract fails. Unfair dismissal

[71]There is no dispute that the claimant was summarily dismissed on 15th September 2023. Nor is there any dispute that the claimant has the right to bring a complaint of unfair dismissal.

[72]The statutory test for unfair dismissal appears in section 98 Employment Rights Act 1998 (“ERA”) which states: 98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3)In subsection (2)(a)— (a)“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b)“qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. Reason for Dismissal

[73]The first issue to consider is - what was the reason (or principal reason) for dismissal?

[74]The respondent bears the burden of proving the reason for dismissal and of proving that the reason is one of the potentially fair reasons set out in section 98(2) or that is it “some other substantial reason” within section 98(1)(b).

[75]The respondent says the reason related to the conduct of the claimant and/or was “some other substantial reason”.

[76]The contemporaneous reasons for dismissal given by Mr White at the end of disciplinary hearing are combination of:(a) The claimant’s actions in grabbing/throwing away Mr Evans’ phone without consent;

(b) The consequential reputational damage to the respondent and the erosion of public confidence;

[77]These were the reasons given at time. Dishonesty is not referred to explicitly in the subsequent dismissal letter. However, the best evidence of Mr White’s contemporaneous conclusion is what he said at time. We conclude that the reasons for dismissal are as set out above. The claimant did not accept the respondent’s case on this issue. However, he did not advance an alternative reason for dismissal.

[78]Our decision on this issue was not unanimous. Two panel members concluded that the reasons for dismissal were all three reasons set out in paragraph 76(a) to (c) above. The third panel member concluded that the reasons were those set out in paragraphs 76(a) and (b) only (i.e. excluding dishonesty).

[79]The reasons for dismissal plainly relate to the claimant’s conduct. Alternatively, they would be “some other substantial reason”. The respondent has proven that the reason for dismissal was a potentially fair reason. Fairness of the Dismissal

[80]Section 98(4) ERA sets out the applicable test of fairness. This requires us to consider whether the respondent acted reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that conduct as sufficient reason to dismiss the claimant. In determining this we must consider equity and the substantial merits of the case.

[81]We must not substitute our own view. Merely because we may have dealt with matters differently or reached a different conclusion does not justify a finding of unfair dismissal. The law requires us to approach the test of fairness using the, so called, “band (or range) of reasonable responses” test to answer the key question – was it reasonable to dismiss?

[82]Employers often have a range of reasonable responses open to them. Different employers may legitimately choose different options. There is a band of reasonableness, within which one employer might reasonably take one view and another quite reasonably take a different view. This requires tribunals to ask: did the employer’s action fall within the band (or range) of reasonable responses open to an employer? If no reasonable employer would have dismissed the employee, then the dismissal is unfair. But if a reasonable employer might reasonably have dismissed him/her, then the dismissal is fair.

[83]In applying the test of fairness we considered the following (with reference to the list of issues): Did the employer have a genuine belief that the claimant committed the conduct concerned?

[84]We did not reach a unanimous decision on this issue.

[85]The majority of the panel accept that Mr White genuinely believed all of the things set out at paragraph 76(a) to (c) above.

[86]One panel member disagreed slightly, accepting that Mr. White genuinely believed in the things set out in paragraphs 76(a) and (b) but not (c) (i.e. that he did not genuinely believe the claimant had been dishonest). Did the respondent have reasonable grounds for that belief?

[87]With regard to the three conclusions drawn by Mr White, we conclude:(a) There were reasonable grounds on which to conclude that the claimant grabbed and threw away Mr. Evan’s phone. The video evidence is sufficient in this regard. It was reasonable for Mr White to have reached this conclusion on the video evidence alone. Our conclusion on this issue was not a unanimous decision. One panel member concluded that it was not reasonable for Mr White to have reached this conclusion on the available evidence.

(b) There were reasonable grounds to conclude that the press and internet reporting of the incident would damage the reputation of the respondent and undermine public confidence in the respondent. It was reasonable to conclude that media and social media reports and the posting online of video footage of a fire officer taking a member of the public’s phone without consent and throwing it away would have this effect.

(c) The majority of the tribunal panel determined that there were reasonable grounds to conclude that the claimant had been dishonest about the incident. The claimant denied the allegation about grabbing and disposing of the phone. The respondent had concluded otherwise. It was reasonable to conclude that the claimant had known that he had grabbed and disposed of the phone yet he had denied this throughout. One panel member took the alternative view (i.e. that there were not reasonable grounds on which to reach a conclusion of dishonesty) At the time the respondent formed that belief on those grounds had the respondent carried out a reasonable investigation?

[88]We are assisted by the ACAS Code of Practice on Disciplinary and Grievance Procedures which set out the minimum standards expected of an employer dealing with such matters. We also considered whether the respondent followed its own disciplinary procedure.

[89]There were flaws in the investigation and the procedure leading to the decision to dismiss. These were not rectified on appeal.

[90]It was apparent to the respondent from the outset that the disciplinary decision was a potentially “career ending” decision. This is a relevant factor in considering what was reasonable as regards the procedure.

[91]The claimant’s case before us was characterised by an ever-expanding list of alleged procedural failings. He raised some complaints in this regard during the disciplinary and appeal process. He raised similar issues in his claim form but argued a more extensive list of failings by the time the case concluded.

[92]The points of concern and the seriousness and significance of each point are as follows:

[93]The email from Ceri Sumner on 15th June 2023 is troubling. The recipients were Mr Rowe, Mr Gough and Mr White who were the key participants in the investigation and disciplinary process. In particular:(a) The claimant argued that comments made in the email amounted to a conclusion that the claimant was guilty and dishonest and so infected the whole process that it had a predetermined outcome. In particular, he points to Ms. Sumner: (i) confirming that she had decided to make a compensation payment to Mr. Evans; and (ii) casting aspersions about the claimant’s honesty by saying “We’ll need to agree approach for JL [the claimant] after initial conversations around honesty”.

(b) The tribunal panel’s decision on this point was not unanimous: (i) The majority rejected the claimant’s contention and concluded that Ms. Sumner was merely taking prompt action to “nip in the bud” Mr. Evans complaint without further reputational damage. There was no admission of liability. Her action was a pragmatic way to end the complaint. Further, her comment about the claimant’s honesty was inappropriate. However, in the view of the majority, the claimant has not proven on the evidence that the key decision makers (i.e., Mr. Rowe, Mr. White or Mr. Connell) approached the matter with anything other than an impartial mindset. The claimant has not proven they had a predetermined outcome in mind or assumed from the outset that the claimant was guilty or being dishonest. Nor was there sufficient evidence to conclude that Ms. Sumner or anyone else influenced them else to make the decisions they did; (ii) One panel member disagreed and concluded that Ms. Sumner’s email led both Mr. Rowe and Mr. White to approach their roles with unconscious bias throughout – seeking to reach a conclusion that confirmed their bias.

(c) In the same email Ms Sumner says, “Pete will not take statements from crew”. This was inappropriate – it amounted to a clear instruction to Mr. Rowe not to interview potential witnesses to take statements from them. It sought to restrict the scope of the investigation. Mr Rowe complied with this. He did not interview the witnesses or take formal statements from them. It was inappropriate for the chief fire officer to be giving that instruction and to interfere with scope of the investigation. The accounts of the witnesses were captured in unsigned statements which we understand we taken via email. The failure of Mr Rowe to interview the witnesses or to take further statements meant that the opportunity to ask further or follow up questions was missed. However, it was clear that none of the potential witnesses actually witnessed the key altercation between Mr Evans and the claimant. They could only give evidence about the context and the incidents immediately before and after, not about the key altercation itself.

[94]The failure to seek a statement from the complainant, Mr. Evans, is also troubling. He was the sole complainant. He and the claimant were the two most important witnesses. He is likely to have wanted to make a statement and likely to have done so if asked. His account of events was however captured in his complaint (which was taken directly from him over the phone and was recorded in writing by the respondent’s Control staff).

[95]The failure to disclose the still photographs taken from the video footage is a minor issue. The stills had been obtained. They should have been disclosed to the claimant as part of the evidence. However, the stills were drawn from the video footage which was provided to the claimant.

[96]Mr Evans should have been asked to provide the full version of his footage so that the “before and after” parts of the incident were available. The respondent knew that there were other parts of the incident which had been filmed and which had not been posted online. It was not difficult to infer from this, that the footage may not show Mr. Evans in a positive light and might assist the claimant’s case. This footage should have been requested. However, the key altercation was captured in the footage that was available. Further, Mr White accepted the claimant’s account of the events where footage was missing.

[97]When the claimant asserted that his PTSD was a contributory factor in the incident, the respondent failed to seek medical evidence about this despite seeking a medical report as to the claimant’s fitness to proceed with the disciplinary process. They did not seek medical advice to address the claimant’s assertion that his PTSD was a factor in the incident. The claimant raised this during the investigation meeting with Mr Rowe. He had referred to his PTSD and symptoms of hyperarousal and his reaction to perceived threat. Mr Rowe referred to it in his investigation report going so far as to say the claimant’s actions “may be as a result of a previous diagnosis of PTSD which can cause hyperarousal where a personal threat could easily startle him". Mr. Rowe repeated similar points during the disciplinary hearing when he was presenting the allegations. He also concluded his closing statement by saying that his own view was that “he knows that [the claimant] has not taken these actions with intent”. The claimant also raised the question of whether medical evidence had been sought at the disciplinary hearing and also referred to his PTSD causing him to startle easily. This was plainly a case where the claimant sought to explain or mitigate his actions by his PTSD. However, no medical evidence was sought on this key point.

[98]We do not accept the claimant’s criticisms about Mr White’s conduct of the disciplinary hearing. The claimant accepted at the time that he had a fair hearing. The hearing itself lasted a full day and gave the claimant every opportunity to put his case. This was plainly reasonable in the context of a disciplinary hearing concerning a single incident that lasted seconds.

[99]The delay in concluding the disciplinary investigation was inappropriate and a breach of the respondent’s own procedure. Put simply - it took too long. The delay was unexplained by the respondent. A reasonable employer would have kept the claimant better informed about the delay and the reasons for delay. The delay caused unnecessary stress to the claimant. However, the delay did not impact upon the eventual decision or cause any specific unfairness.

[100]The venue for the disciplinary hearing was inadequate. It had been changed at the claimant’s request. However, access to toilet facilities was restricted, the breakout rooms were not available for the full day, the claimant was asked to remove all his possessions each time he left the room and the claimant felt very much on display when passing through open plan offices. Better facilities should have been provided.

[101]The respondent failed to obtain copies of the call recordings that were provided to us during the hearing. Again, these recordings were available and were potentially relevant evidence. A reasonable employer would have obtained them particularly as one of the calls (the call in which Mr. Evans made his complaint) was the best available record of Mr. Evans’ account of events in the absence of statement from him.

[102]The claimant complained about the respondent not calling witnesses at the disciplinary hearing. This was not a failing. The claimant was informed in advance that this was to be the case. He did not object. He had the opportunity to call witnesses himself and did not do so.

[103]The claimant also complained that it was unfair to dismiss him (at least in part) for dishonesty when this had not been put to him as a separate or specific disciplinary charge. It is right to say that this charge was not put expressly to the claimant. A reasonable employer would have put the charge to the claimant and to give him an opportunity to respond if it might form a part of the decision to dismiss. Did the respondent act in a procedurally fair manner?

[104]The overarching question is whether has the respondent acted in a procedurally fair manner? We remind ourselves that the band of reasonable responses test applies also to this issue.

[105]The claimant invites us to find that the procedural failings identified are so significant that they take the respondent’s actions outside the range of reasonable responses (i.e. to find that no reasonable employer could have relied on such a flawed procedure).

[106]The respondent refers us to the Court of Appeal’s decision in Hitt v J Sainsbury’s PLC v Hitt

[2003] ICR 111

in support of the contention that the reasonableness of the investigation depends on circumstances. They say it is always possible to point out more things could have been done. However, they make the point that they were investigating a simple incident and a simple question – did the claimant take the phone and throw it over the hedge? They say that as the incident was captured on video this was not a case where a “no stone left unturned” approach was required. In essence they say that the process was good enough in the circumstances.

[107]We recognise that we must not substitute our view. Finding the dismissal to be unfair on procedural grounds requires us to conclude that no reasonable employer could have followed this process. Perfection is not required. The respondent’s point in reliance on Hitt is valid. However, against that, one can also argue that the fact that this was a potentially career ending decision is such that a reasonable employer would be expected to be more rigorous.

[108]We concluded that there are so many procedural failures in this case that the procedure followed by the respondent is outside the band of reasonable responses. The dismissal was unfair on procedural grounds. The complaint of unfair dismissal succeeds on these grounds. Was dismissal within the range of reasonable responses?

[109]We would have decided that dismissal was within the range of reasonable responses. It was a reasonable sanction considering the misconduct found by the respondent. Disability

[110]The respondent concedes that the claimant was a disabled person at the material time within the meaning of section 6 Equality Act 2010 because he had PTSD. The respondent also concedes that it had knowledge of the claimant’s disability of PTSD from 2017. Discrimination arising from disability (section 15 Equality Act 2010)

[111]Section 15 of the Equality Act 2010 states: 15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[112]There is a need to consider two separate causative steps for a claim under Section 15 to be made out (see Basildon and Thurrock NHS Foundation Trust v Weerasinghe

2016 ICR 305

, EAT. These are that:(a) the disability had the consequence of ‘something’, and

(b) the claimant was treated unfavourably because of that ‘something’.

[113]The “something” in this case is the claimant’s reaction to Mr. Evan’s behaviour towards him (i.e. taking his phone and throwing it away).

[114]The respondent raised a pleading point in closing submissions. They said that the only case the claimant had advanced in his claim form was that his conduct (i.e., his conduct on his account of events) was the “something arising” in consequence of his disability. The respondent argued that the claimant had not pleaded any alternative claim (i.e., he had not said that his conduct on the respondent’s account of events was something arising in consequence of his disability). In other words, the respondent argued that once we had accepted the respondent’s account of what happened, it was not open to the claimant to argue that this conduct was something arising in consequence of his disability. We rejected this argument. It was apparent at all stages that the claimant was saying that his conduct (whatever the tribunal might find that to be) was something arising in consequence of his disability. It was open to us to determine this alternative claim.

[115]There is no dispute that the respondent treated the claimant unfavourably by dismissing him.

[116]The key issue is whether the claimant’s reaction and his behaviour in taking and disposing of Mr. Evans’ phone was “something arising” in consequence of his PTSD.

[117]The question of whether the “something” arose in consequence of the disability is a question of objective fact for an employment tribunal to decide in light of the evidence.

[118]The critical question is whether, on the objective facts, the claimant’s reaction in taking and throwing away the phone arose in ‘consequence of’ (rather than being caused by) his disability.

[119]We considered whether the claimant’s behaviour in grabbing and throwing away the phone was something arising in consequence of his PTSD.

[120]In this regard, we had the benefit of an expert report from Dr Mark Cheesman, a psychologist who was instructed as a single joint expert pursuant to an order made in these proceedings. At no point does Dr Cheeseman opine that the claimant’s conduct in grabbing and throwing away the phone was something arising in consequence of his PTSD.

[121]There are references in Dr. Cheesman’s report to:(a) the claimant reporting that his mental health symptoms impact upon various aspects of his life in including “irritability” [Paragraph 2.1];

(b) symptoms of PTSD including “hypervigilance” and “emotional dysregulation” [Paragraph 2.3];

(c) with reference to the potential threat posed by Mr. Evans, Dr. Cheeseman opined “Mr. Linden's perception of threat would have been higher than the average person without a PTSD diagnosis, and he would have been more likely to have wanted to remove himself from a perceived threat” [Paragraph 2.4]

(d) The claimant described himself as constantly “hypervigilant” [Paragraph 6.5.5]

(e) Dr. Cheesman opined that the claimant’s diagnosis of PTSD and associated symptoms “may have been a factor” in his reaction to the events of 14th June 2023 and went on to clarify this by saying that “his PTSD will have contributed to his hypervigilance and reactivity to anything he perceives as threatening” [Paragraph 7.3.1]

(f) Crucially, when directly asked to review the video footage and give an opinion as to the extent to which the claimant’s reaction was affected by his PTSD the answer was “Mr Linden would have perceived a possible risk, and with his PTSD I think that it is likely he wanted to remove himself from possible harm. This would have been, I think, the case for anyone without PTSD, but it would have been exacerbated by his symptoms”.[Paragraph 7.6]

(g) When asked what reaction he would have expected from the claimant, Dr. Cheesman’s opinion was that the circumstances “would have increased Mr. Lyndon's vigilance and increased his perception of risk. I believe that this would have been the case for most people with any history of PTSD…. I think that if he thought there was some perceived risk from [Mr. Evans] action, trying to remove himself would be an action that would be expected.” [Paragraph 7.8]

[122]Reading the report, the conclusion reached is that someone with PTSD would be more vigilant, would perceive risk more readily and would be more prone to a “flight” reaction to remove themselves from conflict than someone without PTSD. However, nowhere in the report is there a sufficiently clear link drawn between the claimant’s conduct in grabbing and throwing away Mr Evans’ phone and the claimant’s PTSD.

[123]Further, the claimant was cross-examined about the point. His evidence was very damaging to his case. When asked how his reaction arose in consequence of his PTSD the claimant said words to the effect of “anyone would react in fight or flight reaction to an object coming towards your face”. His evidence was that he did the “instinctive thing for any human being to do to protect themselves”. He said “I am acting in an instinctive way for any human being to do. It was a split second. A natural reaction anyone would do to protect themselves from any level of aggression”. The claimant’s own evidence was not consistent with his case. In effect, he said that anyone in his position would have reacted in the same way (i.e. including those without PTSD). He did not say that his PTSD made him react differently to those without PTSD.

[124]The claimant had also given other evidence to suggest that his PTSD was not a factor in the incident. He had said of the incident that he was “calm” and “not fazed”. He had described his actions similarly during the disciplinary proceedings saying, “the blocking action described is a defensive, instinctive, proportionate, and legal response to having the unknown item thrusted up towards my face” (p285).

[125]Unsurprisingly, the respondent relies heavily on the claimant’s evidence as summarised above. It suggests that the claimant himself is unable to link his reaction (i.e. the grab and throw) to his PTSD. However, we also noted that in oral evidence the claimant also said words to the effect of “people who don’t have PTSD – don’t see same level of danger. I am not on level playing field. A person with PTSD is going to react with that startle reaction”. He also referred to having an “overactive response to …..things I may see as threatening”.

[126]Overall, weighing up the evidence, we were not persuaded that the claimant’s conduct in grabbing and throwing away Mr. Evan’s phone was something arising in consequence of his PTSD. The evidence that carries particular weight is the medical evidence and the claimant’s own evidence when crossexamined on the point. The claimant’s conduct in grabbing and throwing away the phone was an impulsive and irrational act done “in the moment”. However, the necessary causal link is not made out on the evidence. The claim for discrimination arising from disability fails for this reason.

[127]In the circumstances, need not consider the other issues identified in respect of this claim. Reasonable adjustments (sections 20 and 21 of the Equality Act 2010)

[128]Under sections 20 and 21 Equality Act 2010 an employer has a legal duty to make reasonable adjustments for disabled employees in three situations (only the first of which applies in this case). The applicable provisions in this case are: 20 Duty to make adjustments (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[129]Under section 21 Equality Act 2010, a failure to comply with that duty amounts to unlawful disability discrimination: 21 Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. Provision, Criterion or practice

[130]The starting point is to consider whether the claimant has proven that the respondent had a “provision criterion or practice” (“PCP”).

[131]The term PCP is not defined in the statute. However, assistance is given in the Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’), This states that the term “should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions”

[132]The applicable PCP is identified in the list of Issues as: “A reliance on police back up when the claimant dealt with threats and aggression from members of the public and / or social media bloggers”

[133]At the core of the claimant’s case is the assertion that the respondent should have provided the claimant with conflict management training and/or guidance about dealing with aggressive and challenging members of the public.

[134]The way the PCP is articulated is not as helpful as it might be. What we understand the claimant to be saying is that the respondent gave their employees insufficient tools to deal with such challenging situations (i.e., the only tool that was given to them was to call the police). The claimant is saying that this policy was not good enough. He says that the respondent had a duty to also provide training to better equip him and his work colleagues with the skills to deal with conflict themselves rather than having to resort to calling the police.

[135]We conclude that the respondent did have this PCP. They did not provide routine training or guidance in conflict management. They expected firefighters to rely on their own skills and police back up if required. Substantial disadvantage

[136]The duty to make reasonable adjustments arises where a disabled person is placed at a substantial disadvantage ‘in comparison with persons who are not disabled’ — S.20(3)–(5) Equality Act 2010. A comparative exercise is required to ascertain whether a disabled person is put at a substantial disadvantage. Here, the appropriate comparators are fire fighters who are required to attend operational incidents and who do not have PTSD.

[137]The tribunal should identify what it is about the employer’s operation that causes disadvantage to the employee. The Tribunal should identify the nature and extent of the “substantial disadvantage” caused by a PCP. Section 212(1) Equality Act 2010 states that ‘substantial’ means ‘more than minor or trivial’.

[138]The disadvantage is clear from the medical evidence. Those with PTSD will find it more difficult to deal with challenging people and situations. They are likely to perceive threat more readily. They are more likely to react by removing themselves from the situation. They are less able to deal effectively with such situations because of their increased vulnerability. That is a substantial disadvantage. Respondent’s knowledge

[139]The respondent knew or could reasonably have been expected to know that the claimant was likely to be placed at this disadvantage. They had medical evidence before them to confirm the claimant’s diagnosis and the effects of his PTSD. It was clear (or ought reasonably to have been) that the claimant would be put to this substantial disadvantage. What steps could have been taken to avoid the disadvantage?

[140]The claimant suggests that the respondent should have provided conflict management training and guidance on dealing with threats and aggression from members of the public and/social media social media bloggers.

[141]We agree that such steps could have been taken to avoid the disadvantage. Was it reasonable for the respondent to have taken those steps and when?

[142]The respondent failed to implement the training and guidance referred to.

[143]We take the view that it was reasonable for them to make this adjustment. Taking the holistic approach required we consider that:(a) Such a step was likely to significantly assist all the respondents fire fighters (and particularly those with PTSD) to deal with such challenging situations);

(b) Adding such training and guidance to the existing training and guidance regime would have been easy to do;

(c) The cost in financial terms and resources would not be great in comparison to the size and resources available to the respondent

[144]Pausing there, the reasonable adjustments claim would have been well founded. However, the respondent asserts that this complaint was presented out of time. Timing – out of time?

[145]Under section 123 Equality Act 2010, the tribunal only has jurisdiction to determine a complaint of discrimination where it is presented to the tribunal in time (subject to a limited discretion to extend time). The sections states: 123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable.

[146]A failure to make adjustments is a failure to act rather than a positive act. It is more difficult to assess when a failure to act took place compared to a positive act. Section 123(4) addresses this by saying: (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—(a) when P does an act inconsistent with doing it, or

(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. When should the respondent have made the adjustments concerned? (to establish date of any discriminatory act)

[147]We consider that the respondent ought reasonably to have made the adjustment by late 2022. By this time, the respondent knew about the emerging problem with challenging behavior from members of the public. They knew about the challenges presented by social media “auditors.” They knew that they had staff in the workplace with PTSD. They knew about the difficulties those with PTSD would have in dealing with such conflict. Giving them a reasonable time to recognise these issues and to respond to this by implementing training and guidance, we consider that the respondent ought reasonably to have implemented such training and guidance by late 2022.

[148]It follows that the date of the act to which the complaint of failure to make reasonable adjustments took place occurred by late 2022. The claimant presented his claim form to the tribunal on 1 February 2024. This is considerably outside the time limit under section 123 even taking into account an extension of time for early conciliation.

[149]Section 123(1)(b) gives the tribunal a limited discretion to extend time where it is “just and equitable” to do so. The burden rests upon the claimant to provide evidence from which we can reach such a conclusion. He must show that his prejudice would outweigh that to the respondent There is no adequate evidence from the claimant. The claim is very significantly out of time. The claimant has advanced no reason for his delay in bringing the complaint. Time limits are important. It will prejudice the claimant if he cannot bring this claim. However, it would be a more significant prejudice to the respondent to allow the claim to be brought so late.

[150]There is no adequate basis for exercising the discretion in the claimant’s favour. The complaint is out of time and is dismissed for that reason. Approved by

Findings of fact

[1]The claimant correctly submits that a failure to make a reasonable adjustment is an omission to act (as opposed to a positive act) and that time runs from either:(a) An inconsistent act by the employer; or

(b) the end of the period within which it would have been reasonable to make the adjustment.

[2]The claimant wrongly refers to the “continuing act” provisions of the Equality Act 2010 (EQA). He refers to section 123(3)(a) EQA. The applicable provisions in the case of an omission to act are sections 123(3)(b) and 123(4).

[3]The tribunal adopted the correct test (see paragraph 145 of the Reasons for Judgment) and reached a permissible conclusion on the limited evidence put before it by the parties as to when the respondent ought reasonably to have made the adjustment.

[4]The is no reasonable prospect of the tribunal accepting the claimant’s submissions as regards the failure to make reasonable adjustments being a continuing act in the circumstances. Just and Equitable Extension

[5]The claimant’s submissions as to the “just and equitable” extension are, again, matters which could and should have been raised in evidence and/or submissions. Most fundamentally, they are not supported by the claimant’s evidence. The claimant did not address his reasons for delay in his witness evidence. It is for the claimant to prove on the evidence that it is “just and equitable” for the tribunal to exercise the discretion under section 123(1)(b) EQA. The claimant failed to provide such evidence (see paragraph 149 of the Reasons for Judgment). Date: 2 December 2025 Approved by

Introduction

[1]These reasons relate to the tribunal’s decision on issues of remedy only.

[2]Judgment and reasons for our decisions on liability were given in writing in a reserved Judgment sent to the parties on 10 October 2025 (“the Liability Judgment”)

[3]The claimant’s complaint of unfair dismissal was successful. His other complaints were dismissed.

[4]The case was listed before us today for a remedy hearing.

[5]We considered the contents of a remedy bundle, skeleton arguments/written submissions from both parties and oral submissions from both parties.

[6]Two difficulties arose at the outset of the remedy hearing. They were:(a) The claimant prepared his calculations for loss of earnings based on gross rather than net figures. The respondent had not addressed this error in their counter schedule of loss, and the parties had not sought to agree net figures before the hearing. There were issues about pay increases and insufficient evidence before us to make findings about final figures; and

(b) The claimant did not include sums in his schedule of loss for future losses despite indicating that he sought compensation based on future losses. Again, the respondent had not addressed this in their counter schedule of loss. At the hearing, the respondent accepted that the claimant could seek compensation assessed with reference to future losses. However, they said that they were prejudiced by the lack of figures and may need to provide further evidence in opposition to such a claim once those figures are available. They had not produced such evidence as the claimant’s Schedule Loss did not include any claim for future loss.

[7]We expressed disappointment that the parties had not communicated with each other before the hearing in relation to these issues. The tribunal’s task was hindered by that lack of communication and cooperation. We remind the parties that they have a duty to assist the tribunal in furthering the overriding objective of dealing with cases fairly and justly. This requires them to communicate and cooperate with each other to ensure that their case is properly prepared for a hearing. That was not done here.

[8]The parties agreed that we should make decisions on some of the issues of substance in the expectation that this will enable the parties to resolve any remaining remedy issues by agreement. This enabled some use to be made of today’s hearing.

[9]Consequently, this decision relates to:(a) The assessment of the claimant’s basic award.

(b) The issue of “Polkey” reduction of the compensatory award.

(d) The issue of any increase to the compensatory award for failure to comply with an applicable ACAS Code of practice.

[10]Any remaining issues will need to be determined at a further remedy hearing unless the parties can resolve the dispute by agreement. The decisions set out herein significantly narrow the disputed issues. The tribunal reminds the parties that they have a duty to seek to resolve any remaining disputes “out of court” and they must actively seek to do. Our Decisions

[11]The claimant confirmed that he does not seek reinstatement or reengagement. He seeks compensation for unfair dismissal only.

[12]Compensation for unfair dismissal consists of two elements (s118 Employment Rights Act 1996 (ERA). These are: –11.1 A basic award assessed in accordance with section 119 ERA; and

11.2 A compensatory award assessed in accordance with section 123 ERA.

[13]We deal separately with each element as follows: – Basic Award

[14]The claimant’s basic award of compensation is calculated in accordance with section 119 ERA and is assessed at £15,753.05 based on the claimant’s details below: Age at dismissal on 15/09/23: 50 years (Date of birth 30th November 1972). Length of service on 15/09/23: 32 complete years Gross weekly pay at 15/09.23: £1189 (capped at £643)

[15]The appropriate calculations are set out in the claimant’s updated schedule of loss and are agreed by the respondent.

[16]The respondent invited us to reduce the basic award on the grounds of the claimant’s conduct before dismissal. Such a reduction may be made where ‘the tribunal considers that any conduct of the complainant before the dismissal …………. was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent’ — S.122(2) ERA.

[17]The proper approach is set out in Steen v ASP Packaging Ltd

2014 ICR 56

, EAT, it is for the tribunal to:(a) identify the conduct which is said to give rise to possible contributory fault.

(b) decide whether that conduct is culpable or blameworthy, and

[18]We made findings in our Liability Judgment that:(a) The claimant grabbed Mr. Evan’s phone and threw it away during the index incident. We refer to our full findings in this regard.

(b) that was misconduct and was so serious that it was gross misconduct; and

[19]The respondent seeks to rely on that misconduct in support of a reduction in basic award.

[20]The respondent also seeks to rely on the claimant’s alleged dishonesty throughout the disciplinary process. They assert that the claimant knew he had thrown Mr. Evans’ phone away and dishonestly denied it throughout the disciplinary process. We made findings in our Liability Judgment that the respondent had reasonable grounds to reach that conclusion. However, we did not go as far as making our own finding of dishonesty. We must do so now given the respondents’ submissions. The conclusion reached by the majority of tribunal panel is that the claimant knew he took and threw away Mr. Evan’s phone (or ought to have known once saw the video footage) However, he maintained throughout that he had not taken phone and thrown it away. This was not honest or truthful conduct on the part of the claimant.

[21]We find that the claimant’s conduct was culpable and blameworthy. Furthermore, that conduct contributed towards the dismissal.

[22]We consider that it is just and equitable to reduce the amount of the basic award.

[23]The size of the reduction is a question of judgment and requires an assessment of the circumstances, including whether the employee’s actions could be categorised as gross misconduct.

[24]In the circumstances, we find that it is just and equitable to make a reduction of 75% to the basic award. We consider that the conduct concerned was gross misconduct. The claimant was employed in a senior capacity as Station Manager. He was a role model for others. His behaviour was particularly culpable and blameworthy and was compounded by his dishonesty. However, against this, there are some mitigating factors. In particular, the claimant’s actions were in the face of challenging behaviour from Mr. Evans, the claimant had PTSD which made it more challenging to deal with such aggressive and provocative behaviour. Furthermore, his length and quality of service are significant mitigating factors.

[25]Applying a deduction of 75% to the claimant’s basic award of £15,753.05 reduces basic award (after adjustment) to £3,938.25. We award this sum. The Compensatory Award

[26]To calculate the compensatory award, it is first necessary to ascertain the employee’s total loss in consequence of the dismissal, as far as that loss is attributable to the employer’s actions — S.123(1) ERA.

[27]The objective is to award what the tribunal considers to be a ‘just and equitable’ amount. The award must be compensatory and not punitive.

[28]When assessing what the employee has lost as a consequence of being unfairly dismissed, the tribunal looks at the net remuneration that the employee would have continued to receive if the dismissal had not occurred.

[29]We are unable to undertake this exercise today for the reasons given at paragraph 6 above. “Polkey” Reduction

[30]The respondent invites us to make a finding that, had the dismissal been procedurally fair, the claimant would have been dismissed in any event (i.e., any unfairness made no difference). They invite us to find that either the compensatory award should be nil or should be limited to only a brief period on the basis that the procedure would have been very slightly prolonged had the procedural failings we identified in our Liability Judgment not happened.

[31]The respondent’s counsel referred us to the recent Employment Appeal Tribunal (EAT) decision in Zen Internet Limited v Stobart

[2025] EAT 153

. This contains a useful review of the authorities concerning so called “Polkey” reductions. The Judgment in that case draws from the EAT’s decision in the case of Software 2000 Limited v Andrews and Others

[2007] ICR 825

in which Elias P. set out the range of options open to a tribunal when determining such an issue as follows: (7) Having considered the evidence, the tribunal may determine:(a) that …the dismissal would [certainly, or almost certainly] have occurred when it did in any event: [whilst the dismissal remains unfair, the employee has not suffered any loss of earnings in respect of which compensation falls due];

(b) that there was a chance of dismissal…, in which case compensation should be reduced accordingly [by the appropriate percentage];

(c) that employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in O'Donoghue v Redcar and Cleveland Borough Council

[2001] IRLR 615

;

(d) that employment would have continued indefinitely. However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.”

[32]The procedural failings on the part of the respondent are set out at paragraphs 93 to 103 of our Liability Judgment. After hearing further submissions today, we considered what difference it would have made had those failings not occurred. Taking them in turn:(a) We have already found in our Liability Judgment that the inappropriate comments in the Chief Fire Officer’s email dated 15 June 2023 did not affect the decision making of any of the key decision makers and made no difference to the outcome.

(b) Regarding the failure to interview other members of staff, none of them witnessed the index incident and so would not have been able to provide useful evidence about the incident itself. Their evidence would have been limited to the context (i.e., to what happened before and after the incident between the claimant and Mr. Evans). Their evidence would have provided valuable context and was likely to have been useful to some extent as mitigation. For example, by confirming how difficult Mr. Evans was to deal with and how challenging his behaviour was.

(c) Regarding not seeking a statement from Mr. Evans - we had the benefit of seeing the transcript of the phone log for his complaint, which gives a good indication of what he would have said if a statement had been sought and he had provided one. It is very unlikely that Mr. Evans would have given statement supporting the claimant. However, obtaining such a statement would have given the disciplinary investigator an opportunity to see how challenging Mr. Evans could be. It would also have been an opportunity for the investigator to put to Mr. Evans the question of whether he had a knife or something else that the claimant may have mistaken for a knife once the claimant raised this. Alternatively, if Mr. Evans had refused to provide a statement, it would have enabled appropriate inferences to be drawn from that refusal.

(d) Regarding failing to provide still photos taken from the video footage – this made no difference. The claimant had access to the video itself.

(e) Regarding asking Mr. Evans for a full copy of his video footage – this would not have provided any extra evidence of the index incident itself. The footage of the incident itself was complete. However, the full footage (if provided by Mr. Evans) was likely to have shown what happened before and after the index incident. Again, it would have provided valuable context and potential mitigation. Mr. Evans clearly chose not to put the entire footage online. He curated what was disclosed. That is likely to be because the missing footage did not show him in a positive light. Again, the footage was likely to have provided further mitigation for the claimant. Alternatively, if Mr. Evans had refused to provide the footage, it would have enabled appropriate inferences to be drawn from that refusal.

(f) Regarding seeking medical evidence - less speculation is required of us on this point. We have benefit of medical evidence produced in these proceedings. Something similar would have been obtained had the respondent sought it. If it had been obtained it would have presented some mitigation for the claimant. It would have confirmed that he had PTSD and difficulty dealing with conflict/aggression. It would not have shown that his behaviour was caused by his PTSD. It would have been something that the claimant could have relied on in mitigation.

(g) Regarding the delay in the disciplinary procedure – the claimant would have been dismissed at an earlier stage had the procedure been timelier. The substantive outcome would have been no different.

(h) The inadequate venue for the disciplinary hearing and the failure to obtain copies of the call recordings both made no material difference to the outcome.

(i) Regarding the respondent’s failure to put dishonesty to the claimant as a separate disciplinary allegation, the majority of the tribunal panel concluded that this would have made no difference. The claimant would still have maintained the same approach in response to the allegations and the outcome would have been the same.

[33]In conclusion:(a) This is not a case where we can be certain (or almost certain) that dismissal would have occurred either at same time or shortly thereafter had the respondent not made the relevant failings.

(b) This is a case where there was a chance of dismissal had the respondent not made the relevant failings. Had the respondent not made the procedural failings, they would still have concluded that the claimant took the phone and threw it away. Further, they would still have concluded that the claimant had been dishonest. However, in these circumstances more mitigating evidence was likely to be available to such an extent that we cannot be certain (or nearly certain) that the respondent would have dismissed the claimant. There is, however, a strong likelihood of the claimant having been dismissed anyway and to reflect that strong likelihood we assess the appropriate “Polkey” reduction at 80%. Contributory Conduct

[34]We also assess the appropriate reduction to the compensatory award for contributory conduct at 75% for the same reasons as with the basic award. Increase or reduction (adjustment) of up to 25 per cent where the employer or employee failed to comply with a material provision of the Acas Code of Practice on Disciplinary and Grievance Procedures — S.207A TULR(C)A.

[35]The claimant invites us to increase the compensatory award for the respondent’s failure to comply with the applicable ACAS Code of Practice. Section 207A TULCRA states: 207A Effect of failure to comply with Code: adjustment of awards (1)This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. (2)If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a)the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b)the employer has failed to comply with that Code in relation to that matter, and (c)that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

[36]This requires us to consider various matters:(a) Is there an applicable Code of Practice? Both parties accept that this was a conduct related disciplinary matter, and that the disciplinary parts of the ACAS Code of Practice on Disciplinary and Grievance Procedures (“The Code”) are applicable.

(b) Have there being failings on the part of the respondent to comply with the Code (and if so, what are they)? These failings are drawn from our Liability Judgment. They are (paragraph references refer to the Code): (i) Paragraph 5 – failure to carry out necessary investigations. (ii) Paragraph 9 - failure to put the allegation of dishonesty to the claimant in writing. (iii) Paragraphs 5 and 11 – failure to conduct the investigation and disciplinary process without unreasonable delay.

(c) We consider that such failures were unreasonable. The respondent is a large organistaion with substantial resources available to them. It was unreasonable to fail to comply with such requirements.

(d) We consider that in the circumstances, it is just and equitable to increase the compensatory award and that a 15% increase reflects the number of breaches, the severity of the breaches and the size and administrative resources of the respondent. Approved by