Mr B Gokani and Mrs R Gokani v AFD Software Ltd: 3302529/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 3302529/2024

Between

Mr B Gokani and Mrs R GokaniClaimant

AFD Software LtdRespondent

Before

Employment Judge French

Date 17 December 2024

JUDGMENT

[1]The claim by the second claimant Mrs R Gokani is dismissed upon withdrawal.

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

[3]There shall be a hearing to give judgment on whether the claimant would have been fairly dismissed in any event (Polkey) and to determine remedy on 24 March 2025 via CVP with a 1 day time estimate. _____________________________ Employment Judge French Date: 17 December 2024 Sent to the parties on: 10/1/2025 N Gotecha For the Tribunal Office . Note Case Number: 3302529-30/2024 and 3302534-35/2024 2 Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case No: 3302529-30/2024 and 3302534-35/2024 1 EMPLOYMENT TRIBUNALS Mr B Gokani

[2]Mrs R Gokani v AFD Software Ltd Heard at: Watford (by CVP) On: 16 to 17 December 2024 Before:

REASONS

[1]This is a claim presented by the claimant for unfair dismissal by way of a ET1 dated 23 February 2024. The respondent denies unfair dismissal in its ET3 dated 22 April 2024.

[2]The second claimant has withdrawn her claim and as such her complaint has been dismissed upon withdrawal. These reasons therefore relate to the first claimant only.

[3]These written reasons are provided following a request by the claimant on 20 December 2024. This request was not referred Employment Judge French until 9 January 2025 who has then provided them as soon as possible thereafter.

The evidence

[4]By way of evidence, I had a bundle that, in terms of the hard copy, pagination runs to 1,189 pages but, electronically, only runs to 430 pages. That is because it is in two parts; the first part being paginated 1 to 241 and then the second part being paginated 1,001 to 1,189. The numbering therefore ends at page 241 and starts again at page 1001 which is as a result of the way the parties prepared the bundle. Where I refer to page number I use the hard copy pagination. It should also be noted that some documents appear twice within the bundle and as such each parties’ noted page reference may not Case No: 3302529-30/2024 and 3302534-35/2024 2 correspond to the reference I have used.

[5]For the claimant I have a statement from him, and I also have a statement from Mrs Reena Gokani. I make clear I place no weight on the witness statement of Mrs Gokani because she did not attend the tribunal, and the respondent did not have the opportunity of cross examining her.

[6]For the respondent, I have heard evidence from Alison Dorricott, David Dorricott, Jonathan Stocks, and Oliver Lenihan.

[7]There were also some additional documents that I allowed into evidence late in proceedings and which were provided shortly before the start of the hearing by the respondent. The claimant did not object to them being admitted in evidence. Those documents consisted of a patent application and an article from EyeNews.

The issues

[8]In this case there has been a question in relation to whether or not the claimant was dismissed or whether he resigned. During the course of this hearing, that issue has not been put forward with any force by the respondent in terms of their cross examination of the claimant or their submissions, however I do note that it had been raised in their response and subsequently in correspondence to the tribunal and I will therefore address the issue on that basis.

[9]The respondent also suggested that the claim had been presented out of time. Again, that has not been pursued by the respondent during this hearing either by way of submissions or their cross examination of the claimant. Time limits are however relevant to the tribunal’s jurisdiction to hear the complaint, and I will therefore address the same.

[10]If the claimant was dismissed the respondent states that the reason for the claimant's dismissal was misconduct. I will therefore need to determine:a. Did the respondent genuinely believe that the claimant was guilty of misconduct

b. If so, was this belief based on reasonable grounds?

c. Had the respondent carried out such an investigation into the matter as was reasonable in the circumstances?

d. Did the respondent carry out a reasonably fair procedure?

e. Was it within the band of reasonable responses to dismiss the claimant rather than impose some other sanction?

[11]If the dismissal was procedurally unfair, I also need to consider what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd [1987] UKHL. Fact finding

[12]The claimant was employed by the respondent as a regional sales manager Case No: 3302529-30/2024 and 3302534-35/2024 3 from 15 November 1999 to 22 September 2023. The respondent provides market software products and services that assist computer users in entering name, address, banking and other data into computer systems, and to keep that data current and accurate.

[13]Mr and Mrs Dorricott are directors of the respondent company. Mr Stocks is the claimant’s line manager and Mr Lenihan accompanied the claimant at the disciplinary hearing.

[14]On or around 21 March 2019 the claimant set up a company called EziDrops Ltd which produces and distributes small aides to assist with applying drops to ears and eyes.

[15]On or around 12 September 2023, the respondent became aware that the claimant has set up his EziDrops company.

[16]The claimant’s employment contract at page 1011 states as follows: ‘Your employment with the Employer is exclusive, and unless explicitly agreed with the Employer beforehand in writing, no work of a paid or unpaid nature may be undertaken during or outside working hours. See Staff Handbook for further details.’

[17]The staff handbook at page 1032 states as follows: ‘You must devote the whole of your time, attention and abilities during your hours of employment to your duties to the Employer. Unless explicitly agreed otherwise with your Employer beforehand in writing, your employment is exclusive and you must not play a part in any other business or undertake any other employment of a paid or unpaid nature either during or outside your employment hours for AFD.’

[18]As a result of discovering the claimant’s involvement in EziDrops the respondent carried out an investigation into the claimant’s conduct. As part of that, the respondent initially gathered information in relation to the claimant’s involvement in EziDrops and also looked at their internal call logs (page 1031) from which they believed that some calls placed by the claimant did not relate to the respondent's work. It was the respondent's evidence that this process was carried out jointly by Mr and Mrs Dorricott with Mrs Dorricott creating the investigation report which appears at page 1006.

[19]On 14 September Mrs A Dorricott telephoned ACAS for advice on how to proceed which included being provided with a template to suspend the claimant whilst investigations were conducted. This document appears at page 1003. This document also invites the claimant to a disciplinary hearing scheduled for 27 September 2023 at page 1007.

[20]The respondents evidence is that there was a discussion between Mrs Dorricott, Mr Dorricott and Mr Stocks about how to deliver this letter and news to the claimant and it was decided that they would convene a meeting with the claimant on 18 September 2023 in which to provide him with the investigation report and suspension letter which included the invitation to a disciplinary hearing. Case No: 3302529-30/2024 and 3302534-35/2024 4

[21]As part of these discussions the respondent witnesses stated that they were concerned about the claimant’s welfare following this news and as such arranged for a taxi to return the claimant to his home address following the meeting on 18 September. The claimant’s position is that this was done so that the respondent secured the return of the claimant’s company car on the basis that the decision was pre-determined. I make no findings on this issue because it is not determinative.

[22]On 19 September 2023, the claimant emails the respondent requesting a delay of the disciplinary hearing scheduled for 27 September 2023 which can be seen at page 158. The respondent replies to say that they cannot delay matters but offers two alternatives, namely, bringing the matter forward or having a without prejudice discussion (page 159). It appears that following advice from ACAS the respondent considers a without prejudice discussion is not possible or appropriate and again indicates to the claimant that they can bring the meeting forward.

[23]The claimant replies to this at page 160 stating that he agrees it would be better for the meeting to take place sooner and it is scheduled for 22 September 2023 at the claimant’s suggestion.

[24]In the meantime, the claimant also submitted a document that can seen at page 162 which outlines his position in relation to the allegations. The respondent pushes the claimant for a response on what is disputed by him in relation to the investigation report (page 163) for which the claimant replies that ‘there is nothing to dispute.’

[25]At the meeting on 18 September 2023 the respondent also took possession of the claimant’s mobile telephone and computer and on examination of the same discovered that the claimant had used working time managing EziDrops’ Amazon account (page 1037 – 1049), written to AFD customers to recommend EziDrops (page 1050 – 1051), and used his AFD mobile phone number as his main EziDrops contact number (page 1052).

[26]In evidence Mrs A Dorricott did not dispute that she had written the investigation report with Mr Dorricott’s input and that she subsequently carried out the disciplinary hearing in relation to that report.

[27]Mrs Dorricott also accepted that prior to the disciplinary hearing on 22 September 2023, she had written the outcome letter at page 1061 which concluded that the claimant had committed gross misconduct and terminated his employment with immediate effect. She stated that despite this she went into that meeting with an open mind.

[28]I do not accept that evidence because at paragraph 8 of Mrs Dorricott’s witness statement she suggests that even before the respondent had informed the claimant of disciplinary action on 18 September she had a call with Mr Dorricott and Mr Stocks about the possibility of keeping the claimant employed as a consultant and had concluded that ‘this had been going on so long that trust had probably broken down too much to make that work.’

[29]In oral evidence Mr Dorricott also confirmed this to be the position namely that on or around 14 September 2023 there had been a meeting between himself, Mrs Dorricott and Mr Stocks and they had concluded that the Case No: 3302529-30/2024 and 3302534-35/2024 5 claimant ‘could not remain’.

[30]Further at paragraph 14 of Mrs Dorricott’s witness statement she states that ‘By 20th September the breaches of contract and betrayal of trust seemed obvious to me and I thought them undeniable, so I wondered if the kindest thing would be to informally face Bob up with our findings so far, to suggest he resigned, to save us all the trauma of going through further disciplinary procedures in what seemed like a clear-cut case. However, that morning I phoned ACAS again just to check this would be in order, and took advice from “Gail”, who said that unfortunately it would be safer for us to go through all the formal procedures first, to minimise the risk of a future Employment Tribunal.’

[31]Mrs Dorricott also confirmed that prior to the disciplinary meeting she had also drafted a termination agreement which can be seen at page 1063.

[32]There was some dispute over a final statement as advanced by the claimant in the disciplinary hearing. He states that this is as set out at page 220 of the bundle. The respondent witnesses' evidence was that this was more in accordance with the statement he had already provided on 20 September at page 162. The respondent did not take a separate note of the meeting and in resolving the dispute I conclude that the claimant advanced the document at page 220, that being the only contemporaneous note of the same.

[33]At the conclusion of the disciplinary hearing Mrs Dorricott (paragraph 21 of her statement) states that she took a short break to allow her to make a final decision and finalise the paperwork. The hearing was then reconvened and the outcome letter at page 1061 was read to the claimant in full before, as an alternative he was invited to resign in accordance with the termination agreement. The law Time limits

The law

[34]The time for presenting a complaint of unfair dismissal is determined by s.111(2) of the Employment Rights Act 1996 which provides:- (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A) Section 207(B) (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a). Unfair dismissal Case No: 3302529-30/2024 and 3302534-35/2024 6

[35]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111.

[36]The employee must show that he was dismissed by the respondent under section 95. It has long been established that if an employee is told that he or she has no future with an employer and is expressly invited to resign, then that employee is to be regarded as having been dismissed for example, East Sussex County Council v Walker 1972 7 ITR 280, NIRC.

[37]The principles to be considered in such circumstances were set out by the Court of Appeal in Martin v Glynwed Distribution Ltd

1983 ICR 511

, CA. Sir John Donaldson MR said that: ‘Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really terminated the contract of employment?”. If the answer is the employer, there was a dismissal.’ He went on to hold that this question was one of fact for the tribunal to decide in the circumstances of the particular case.

[38]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.

[39]In this case if the claimant was dismissed the respondent relies on misconduct. Misconduct is a potentially fair reason for dismissal under section 98(2). The respondent has satisfied the requirements of section 98(2).

[40]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 shall be determined in accordance with equity and the substantial merits of the case.

[41]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in British Homes Stores Ltd v Burchell

1978 IRLR 379

and Post Office v Foley

2000 IRLR 827

. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to Case No: 3302529-30/2024 and 3302534-35/2024 7 an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones

1982 IRLR 439

, Sainsbury’s Supermarkets Limited v Hitt

2003 IRLR 23

, and London Ambulance Service NHS Trust v Small

2009 IRLR 563

[42]The Tribunal must consider, if the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

[43]In undertaking this exercise, the Tribunal are not assessing what we would have done; we are assessing what this employer would or might have done. We must assess the actions of the employer before us, on the assumption that the employer would this time have acted fairly though it did not do so beforehand: Hill v Governing Body of Great Tey Primary School

[2013] IRLR 274

at para 24.

[44]The question for the tribunal is whether the particular employer (as opposed to a hypothetical reasonable employer) would have dismissed the claimant in any event had the unfairness not occurred.

[45]The Polkey adjustment is only applicable to the compensatory award, not the basic award.

[46]The tribunal must assess any Polkey deduction in two respects: 1) If a fair process had occurred, would it have affected when the claimant would have been dismissed? and 2) What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal? Conclusions Time limits

Conclusions

[47]As stated above, although not argued by the respondent at the hearing, time limits have previously been raised by the respondent as an issue and I address the same given it is relevant to my jurisdiction.

[48]The effective date of termination was 22 September 2023. The claimant would have three months less a day from the effective date of termination in which to bring a claim. However, that is extended by the Acas early conciliation process which began on 13 December 2023 and ended on 24 January 2024. The claimant would have one month from when that process ended in which to present his claim and, therefore, accordingly, when he presented his claim on 23 February 2024, he was in time.

[49]I am satisfied that the tribunal therefore has jurisdiction to determine the claim. Unfair Dismissal Case No: 3302529-30/2024 and 3302534-35/2024 8 Was there a dismissal?

claim.

[50]In resolving the first question of whether or not there was a dismissal, I am satisfied that the claimant was dismissed.

[51]There was a disciplinary hearing and at the conclusion of that the claimant was presented with an outcome letter documented at page 1061. That stated that the claimant was guilty of gross misconduct and that it warranted the termination of his employment with immediate effect.

[52]He is then presented with a subsequent document which is described as a termination agreement, and I can see that at page 1063. That effectively invites the claimant to resign. His options, however as confirmed by Mrs Dorricott in her evidence, were to resign or be dismissed. Mrs Dorricott also confirmed in her evidence that, if he had not resigned, he would have been dismissed because of her conclusion that the claimant was guilty of gross misconduct.

[53]I consider that clearly falls short of a voluntary resignation of the claimant’s own choice. I recognise that claimants do often choose to resign prior to the conclusion of a disciplinary process but the circumstances here were that the claimant had already been told the outcome was a finding of gross misconduct and that he would be dismissed. Further I acknowledge his evidence that he was concerned about the intellectual property rights in EziDrops which the respondent considered belonged to them and their reference to the transfer of the same to them within the outcome letter at page 1062.

[54]In cross examination the claimant was taken to a number of documents at pages 1065, 1069 and 1090 for example which indicated that the claimant was accepting and even happy with the outcome. I acknowledge those however I do not consider that in law that changes the position that there has in fact been a dismissal.

[55]Therefore, in those circumstances, I am satisfied that there was in fact a dismissal.

[56]I therefore look at the reason for dismissal and it is not in dispute that the respondent dismissed the claimant because it believed that he was guilty of misconduct. As I have said, that is a potentially fair reason for dismissal under s.98(2) and the respondent has satisfied those requirements. Did the respondent genuinely believe that the claimant was guilty of misconduct?

[57]I conclude that the respondent genuinely believed that the claimant was guilty of misconduct.

[58]The claimant’s employment contract at page 1011 states as follows: ‘Your employment with the Employer is exclusive, and unless explicitly agreed with the Employer beforehand in writing, no work of a paid or unpaid nature may be undertaken during or outside working hours. See Staff Handbook for further details.’ Case No: 3302529-30/2024 and 3302534-35/2024 9

[59]The staff handbook at page 1032 states as follows: ‘You must devote the whole of your time, attention and abilities during your hours of employment to your duties to the Employer. Unless explicitly agreed otherwise with your Employer beforehand in writing, your employment is exclusive and you must not play a part in any other business or undertake any other employment of a paid or unpaid nature either during or outside your employment hours for AFD.’

[60]The evidence of Mrs Dorricott was that she placed reliance on those terms of employment. The respondent had evidence of the claimant’s involvement in EziDrops as set out in the investigation report. The claimant did not seek to shy away from that and when asked if there was anything he disputed, he accepted that there was not. If so, was this belief based on reasonable grounds?

[61]In terms of whether or not the belief was held on reasonable grounds, this has been a finely balanced decision because of the degree of the investigation which I address below.

[62]On balance, however I find that it was held on reasonable grounds, that is because the contract was very clear, and the claimant did not deny it. I do find that the investigation report was provided to him at the meeting on 18 September and he did have an opportunity to consider it.

[63]I acknowledge the respondent’s position that it was a clear breach of contract, even if the work had been completed in his own time or at weekends. The claimant’s position was that the respondent would have been okay with his involvement in EziDrops given the history between him and the respondent. In that regard, he took the tribunal to an email where the respondent shared its patent lawyer in relation to another idea that he had and I acknowledge the same.

[64]However I reject that assertion on the basis that, if it were okay, then why would he not have told the respondent of his involvement from the outset. This is also in circumstances where he says the relationship had changed in the last few years which would perhaps suggest that the claimant was aware that it would not be okay given that change.

[65]As to the belief being held on reasonable grounds, the respondent also took possession of the claimant’s mobile telephone and computer and examination of the same discovered that the claimant had used AFD work time managing EziDrops’ Amazon account (page 1037 – 1049), written to AFD customers to recommend EziDrops (page 1050 – 1051), and used his AFD mobile phone number as his main EziDrops contact number (page 1052). The claimant was authorised to use his work telephone for personal use, however he did not shy away from the fact that perhaps he should not have done for the purposes of EziDrops. Had the respondent carried out such an investigation into the matter as was reasonable in the circumstances? Case No: 3302529-30/2024 and 3302534-35/2024 10

[66]I now address whether the respondent carried out an investigation into the matter as was reasonable in the circumstances. In that regard the claimant was provided with the investigation report and invited to a disciplinary meeting within the same document at page 1007.

[67]The disciplinary hearing was originally scheduled for 27th September and it was brought forward to the 22nd September. There is a dispute between the parties here as to why or whether the meeting should have been bought forward. I am not making any findings in relation to whose decision it was to bring it forward because I do not think it is material to my decision.

[68]What I do observe is that prior to referring the claimant to a disciplinary hearing, namely during the investigation stage there is not an initial fact finding exercise involving the claimant. The issue is put to the claimant for the first time by way of the investigation report which also invited him to a disciplinary process. That did invite the claimant to submit any written observations on matters which he did so, however at this stage it had already been concluded that the matter would proceed to disciplinary action.

[69]I do not in itself consider that renders the investigation process unfair, but I do note that prior to the decision to proceed with disciplinary action, the claimant is not given any opportunity to explain his position.

[70]I acknowledge the respondent's need to secure the claimant’s laptop and telephone as part of their investigation. This could have been done at the meeting on 18 September and then on review, a decision made on whether to refer to a disciplinary hearing. The claimant could have been spoken to at the meeting on 18 September as part of an investigatory stage.

[71]I do stress however that I do not consider that in its own right meant that the investigation was not reasonable.

[72]The most significant issue with the investigation is that the investigation report is written by the dismissing officer. In effect, the dismissing officer judges her own report. That also goes to the fairness of the procedure and whether the respondent carried out a reasonably fair one and is further addressed below. Did the respondent carry out a reasonably fair procedure?

[73]I conclude that the respondent did not carry out a reasonably fair procedure. I have regard to the administrative resources of the respondent company and the fact that they only employ four people within the UK. However, I am told that there are 40 staff in the Ise of Man and there is no reason, in my judgment, why another person from the Isle of Man could not have carried out the investigation separately to the dismissing officer.

[74]Indeed, it would have even been possible for Mr Dorricott to have carried out the investigation without any reference to Mrs Dorricott and then Mrs Dorricott to deal with the dismissal. I acknowledge that obviously that is a husband and wife relationship and, in those circumstances, it may well have Case No: 3302529-30/2024 and 3302534-35/2024 11 been better designated to someone else but even that would have provided some Independance of the two processes. I consider it was possible for the claimant’s line manager to have conducted the investigation separately or indeed the respondent could have used an external agent for part of the process. Either way, I conclude that there were alternative options.

[75]In this case, Mrs Dorricott investigated the matter and conducted the disciplinary hearing resulting in the situation where she is adjudicating on her own report. Her evidence was that despite this, she has an open mind and I genuinely believe her when she states that that was her belief.

[76]However, I am of the view that it is very difficult to go into that process with a complete open mind in circumstances where you are the author of the investigation report. In addition, I have evidence that in fact the conclusion was reached before the disciplinary hearing took place as outlined above. The evidence of Mr Dorricott was that before the disciplinary meeting he, his wife and Mr Stocks had concluded that the claimant could not remain in their employment. That is prior to the disciplinary hearing and prior to hearing any explanation or mitigation from the claimant.

[77]Mrs Dorricott’s own witness statement also suggests that the decision was pre-determined, outlined above with reference to paragraphs 8 and 14. This supports that the conclusion was pre-determined.

[78]That is supported also by the fact that Mrs Dorricott had already written the outcome letter prior to the disciplinary meeting which indicated a finding of gross misconduct and summary dismissal. She says that was for efficiency but, there was no need for an outcome to be delivered there and then such to make its pre-drafting necessary.

[79]Reliance is also placed on page 1001, by the respondent, that being the invitation letter to the disciplinary hearing. That refers to the fact that the claimant may have breached his employment contract and that there is an opportunity for him to put his account forward. Reliance is placed on that to show that actually there was a fair procedure. I do not accept that because I conclude that, effectively, it is just words. Actually, what occurs is a decision on a report written by the dismissing officer in circumstances where the decision has been already been made.

[80]As for the disciplinary meeting itself, Mrs Dorricott takes the tribunal to the crib sheet which she used to guide the meeting which appears at page 1056 onwards. My general reading of that is that also supports a pre-judged conclusion. Much of the document is statements of findings and the resulting breach of trust. The questions do not lend themselves to an explanation from the claimant but rather invites agreement to their position. The claimant does not deny the respondents findings and the respondent places weight on this. What is then lacking is any exploration into the degree of the breach of contract and I address that further below.

[81]Further, as to the right of appeal, that is noted in the outcome letter at page 1062. However, it is given at the same time that there is reference to the claimant having to transfer his intellectual property rights in EziDrops to the respondent. I accept that was the terms of the claimant’s contract however, in those circumstances, I accept the claimant’s explanation that the offer of Case No: 3302529-30/2024 and 3302534-35/2024 12 an appeal felt conditional. This is also in circumstances where immediately after, the claimant is presented with a termination agreement and is given the opportunity to resign which he takes in the situation as faced by him. That in itself also detracts from the actual ability to appeal.

[82]For those reasons I do not conclude that there was a fair procedure. Was it within the band of reasonable responses to dismiss the claimant rather than impose some other sanction?

[83]I do look at whether or not the decision was in the band of reasonable responses. Here I am not looking at what I would have done but what a reasonable employer would have done, and it is recognised that different employers could take different courses of actions in difference circumstances, and it is therefore with reference to the range of reasonable responses.

[84]In this case the claimant has been employed by the respondent for 24 years. I am not taken to any prior disciplinary action or warnings against him. There was some reference to previous performance issues, although the respondent accepted through their evidence in cross examination that there were no performance concerns at the time of the dismissal. This is also a case where the claimant’s company EziDrops is not in competition with or related at all to the respondents company interests.

[85]In reaching their conclusion the respondent does not carry out any detailed exploration in relation to the fact and degree of the claimant’s involvement in EziDrops. The respondent places heavy reliance on the fact that there has been a breach of the contract term which has not been denied by the claimant.

[86]In that regard, I consider that it was in the range of reasonable responses to explore circumstances in which an employee has set up another company (in breach of a contract term) but which does not detract from their employment duties or company time. The claimant’s own evidence was that he could not put an exact figure on the amount of time that he had spent on EziDrops and of course in those circumstances the respondent cannot be expected to do the same.

[87]However, I do consider that it is in the band of reasonable responses for there to be some consideration of fact and degree. There is a difference between somebody that has is running another company and doing so solely on the respondent’s time and not performing their role, compared to an individual that has an interest that is being run alongside their employment, that may well be in breach of a term in the contract but is not interfering with their duties and roles and responsibilities to the company.

[88]I consider that dismissal in those circumstances is not within the band of reasonable responses.

[89]That also goes to my consideration of the issue that given my conclusion is Case No: 3302529-30/2024 and 3302534-35/2024 13 that the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed. I consider that it is difficult for me to consider that the claimant would have been dismissed in any event had a fair procedure been carried out because of the lack of exploration into the degree of his breach.

[90]It was not however possible for me to finalise my conclusions in that regard because there because there was insufficient time prior to the parties return for me to give oral Judgment. Given my conclusions however there was a need for a further remedy hearing, and I indicated that I would provide my decision on whether the claimant would have been dismissed in any event had a fair procedure been followed (Polkey) at that hearing.

[91]There shall therefore be a hearing to give judgment on whether the claimant would have been fairly dismissed in any event (Polkey) and to determine remedy on 24 March 2025 via CVP with a 1 day time estimate. Approved by: Employment Judge French 24 January 2025

claim.

Introduction

[1]By Judgment of 17 December 2024, the claimant was unfairly dismissed.

[2]There is a 75 % chance that the claimant would have been fairly dismissed in any event.

[3]It is just and equitable to reduce the basic award payable to the claimant by 75 % because of the claimant’s conduct before the dismissal.

[4]The respondent shall pay the claimant the following sums: A basic award of £4340.25

[6]A compensatory award of £5879.71 Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.

[7]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply.

[1]The claim was before me for a remedy hearing further to the final hearing which took place on 16 to 17 December 2024. There was insufficient time to deal with remedy on that occasion. There had also been insufficient time to give a decision on Polkey.

[2]The respondent was not legally represented at the final hearing, however instructed a representative following the final hearing.

[3]At the outset of the hearing there was some discussion as to the scope of the hearing, the claimant’s position being that matters covered at the Case Number: 3302529-30/2024 2 previous hearing should not be re -visited. The claimant considered that in those circumstances no witness evidence should be called. The respondent agreed that previous matters should not be re-visited but stated that they wished to call witness evidence to deal with Polkey and contributory fault which had not yet been determined.

[4]I agreed that the issues of Polkey and contributory fault remained live and allowed witness evidence on those issues. Both the claimant and Mrs Dorricott were called in that regard.

[5]There was a separate request for disclosure of the claimant’s EziDrops calendar prior to his dismissal and further medical evidence. I refused the application. Oral reasons having been provided at the hearing in respect of that decision, written reasons will only be provided if requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024.

Evidence

[6]I had a supplementary bundle consisting 319 pages. This included additional statements from the claimant and Mrs Dorricott. The law – remedy

[7]The Tribunal must consider, if the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

[8]In undertaking this exercise, the Tribunal are not assessing what we would have done; we are assessing what this employer would or might have done. We must assess the actions of the employer before us, on the assumption that the employer would this time have acted fairly though it did not do so beforehand: Hill v Governing Body of Great Tey Primary School

[2013] IRLR 274

at para 24.

[9]The question for the tribunal is whether the particular employer (as opposed to a hypothetical reasonable employer) would have dismissed the claimant in any event had the unfairness not occurred.

[10]The Polkey adjustment is only applicable to the compensatory award, not the basic award.

[11]The tribunal must assess any Polkey deduction in two respects: 1) If a fair process had occurred, would it have affected when the claimant would have been dismissed? and 2) What is the percentage chance that a fair process Case Number: 3302529-30/2024 3 would still have resulted in the claimant’s dismissal? Software 2000 v Andrews

[2007] ICR 825

[12]Where there is a significant overlap between the factors taken into account in making a Polkey deduction and when making a deduction for contributory conduct, the Tribunal should consider expressly, whether in the light of that overlap, it is just and equitable to make a finding of contributory conduct, and, if so, what its amount should be. This is to avoid the risk of penalizing the claimant twice for the same conduct (see Lenlyn UK Ltd v Kular

UKEAT/0108/16/DM

[13]Further, the Tribunal may reduce the basic or compensatory awards for culpable conduct in the circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996.

[14]Section 122(2) provides as follows: “Where the Tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”

[15]Conduct which was not known to the employer and cannot have caused or contributed to the dismissal may be taken into account Optikinetics Ltd v Whooley

[1999] ICR 984

[16]Section 123(6) then provides that: “Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

[17]To fall into this category, the claimant’s conduct must be ‘culpable or blameworthy’. Save in respect of the basic award, such conduct must cause or contribute to the claimant’s dismissal, rather than its fairness or unfairness. Such conduct need not amount to gross misconduct (Jagex Ltd v McCambridge

UKEAT/0041/19

). It is also possible to make a reduction for contributory conduct even if, had the employer acted fairly, a dismissal would not have occurred at all (Wilkinson v DVSA

[2022] EAT 23

). Case Number: 3302529-30/2024 4

[18]In assessing contribution the tribunal should (Steen v ASP Packaging Ltd

UKEAT/0023/13

/1707): 1) Identify the relevant conduct; 2) Assess whether it is objectively culpable or blameworthy; 3) Consider whether it caused or contributed to the claimant’s dismissal; and 4) If so, determine to what extent it is just and equitable to reduce any award.

[19]A helpful framework for addressing the related issues of contributory conduct and a Polkey reduction was provided by the EAT in Dee v Suffolk County Council EAT 0180/18. His Honour Judge Barklem observed that the tribunal should first consider what decision the employer’s disciplinary panel would have reached on the issue of whether the claimant was guilty of gross misconduct and/or lesser misconduct had a fair procedure been followed. If it determined that he would have been found guilty of gross misconduct or misconduct, it should then decide what sanction the panel would have imposed. Each factor that was relevant to the tribunal’s determinations should be identified and its effect explained. Naturally, the outcome could not be expressed other than by reference to a percentage reduction, but it was important that the basis for this was set out. A similar exercise should then be carried out in relation to the reduction for contributory fault, and confirmation given that the tribunal had ‘stood back’ and looked at the matter as a whole in order to avoid any double counting and ensure that the final result was overall just and equitable. If a different percentage was to apply to the reductions in the compensatory and basic awards, the basis for that conclusion should also be set out.

[20]A claimant is expected to mitigate the losses he suffers as a result of an unlawful act by giving credit for sums received from new/alternative work. A tribunal will not make an award to cover losses that a claimant could reasonably have been avoided. Accordingly, an unfairly dismissed employee is expected to search for other work, and will not recover losses beyond a date by which the tribunal concludes the individual ought reasonably to have been able to find new employment at a similar rate of pay Cooper Contracting Ltd v Lindsey

UKEAT/0184/15/JOJ

[21]The question of reasonableness is to be determined by the tribunal itself, with the claimant’s wishes and views simply one of the factors in its analysis. Tribunals are encouraged not to apply too demanding a standard of the claimant. It may be reasonable to attempt to mitigate loss by setting up a new business or becoming self-employed Cooper Contracting Ltd v Lindsey

UKEAT/0184/15/JOJ

. Case Number: 3302529-30/2024 5

[22]Where an employee has simply made no job applications at all, the employer is entitled to assert, at least as a starting point, that by failing to do so, he has acted unreasonably, subject to the tribunal being satisfied as to the explanation. An employee failing to look for any jobs at all is likely to be sufficient to discharge the employer’s burden of proof. It is then for the employee to explain why such a failure was reasonable (Hilco Capital Ltd v Harrington

[2022] EAT 156

). Conclusions Mitigation of loss

Conclusions

[23]The claimant’s position is that following his dismissal he sustained a flare up of his medical condition ulcerative colitis which meant that he was unable to work. Whilst I do not dispute the claimant had a medical condition, on the evidence before me I am not satisfied that it was such that it prevented his working for a period of 8 months. There is also no medical evidence which directly points to a flare up or worsening of the condition at the time of the dismissal to suggest that he was incapable of working from that period.

[24]To the contrary, within the claimant’s EziDrops calendar as produced by him, I note on page 267 that there is a trip to Munich on 25 September 2023. The claimant’s evidence was that this also involved a social event to Octoberfest (a beer festival) and that he simply attended a conference as part of that trip. Regardless of the purpose, the claimant was fit enough to take this trip shortly after his dismissal on 22 September 2023 when he said that his condition was at its worst following an immediate relapse.

[25]There follows within the calendar a number of entries related to EziDrops. I do not consider that these were all one-off meetings but rather some are reminder entries around tasks that the claimant needed to do, and I consider these entries are such that would involve an amount of work in the background.

[26]His evidence was that the work was outsourced, however I consider that even outsourcing would have involved significant work from him given his position in the company.

[27]I also have some doubts as to the claimant’s credibility in respect of this calendar because the version that was originally provided by the claimant blocked out a number of tasks that were clearly related to EziDrops and which the claimant was taken to in cross examination. Case Number: 3302529-30/2024 6

[28]The claimant’s account is that his instructions were that he could redact all irrelevant entries and he had removed reminders. I do not accept that explanation where reminders related to his work with EziDrops and clearly therefore would have been relevant. I do consider in those circumstances that the claimant has sought to misrepresent the amount of work he was doing for EziDrops at this time.

[29]The claimant’s position is that once he was fit enough, he did not apply for any alternative jobs as he decided to invest his time and focus on running the EziDrops company. The claimant’s dismissal arose from the respondent discovering that he had set up and was involved in another company, EziDrops which was set up on or around 21 March 2019. It was an established company for which the claimant had invested significant time and effort.

[30]I am satisfied that the claimant acted reasonably in seeking to make a success of his already established business as an alternative to looking for work. This is in circumstances where he was 55 years at the date of termination and had been employed for some 23 years. The business had been established for some time and I consider it reasonable for him to consider this as an alternative income on dismissal.

[31]However, I consider that a period of 4 months was reasonable for the claimant to establish whether or not this would generate sufficient income for him. Had the company been an initial start-up, I consider this period may have been longer but at the time of his dismissal it had been established for some time. The media coverage obtained by the respondent during the course of these proceedings suggested that the claimant had invested significant time and energy into the company, and this was not disputed by the claimant. I consider that 4 months post dismissal was therefore a reasonable period for the claimant to establish whether the business would succeed or not.

[32]I consider that there has then been a failure by the claimant to mitigate his loss by way of looking for alternative employment at that stage, namely once it was clear that his business was not making any profit.

[33]I am not satisfied on the evidence that he was medically unfit to work from this period. To the contrary, the evidence before the Tribunal is that he was undertaking work for EziDrops during this time.

[34]In evidence the claimant suggested he was unable to be away from home due to his condition. Again, to the contrary, the evidence in his calendar Case Number: 3302529-30/2024 7 does not support that he was unable to be away from home. Even if he was his role for the respondent was a remote role and I consider that it would have been reasonable for the claimant to have looked for an alternative remote role, allowing him to work from home around any medical needs. His evidence was that he looked for no alternative at all.

[35]The claimant also relies on the restrictive covenant clause that he signed as part of his resignation as to why he did not seek alternative employment. The claimant presented his ET1 on 23.2.24 in which he asserted unfair dismissal. As such I consider that by that stage at the latest, he could not have considered that he remained bound by this and indeed it is likely to have been much sooner given he approached ACAS on 13 December 2023. In any event this prevented him working for direct competitors.

[36]I note the respondent's unchallenged evidence of alternative employment at pages 3-12 and 13-16 of the supplementary bundle. I consider that these were roles open to the claimant to apply for in circumstances where his attempts in relation to his business venture had not succeeded.

[37]I therefore conclude that the claimant ought reasonably to have been able to find new employment at a similar rate of pay after a period of 4 months. Loss of basic salary is therefore calculated at 16 weeks x £747.00 totaling £11952.00.

[38]Other than Polkey and contributory fault the other figures within the schedule of loss are agreed. Polkey

[39]In my liability reasons I concluded that the respondent had a genuine belief that the claimant was guilty of misconduct and that this was held on reasonable grounds. In summary, the unfairness arose because the decision to dismiss was pre-determined and there was a lack of investigation into the degree of the claimant’s involvement in EziDrops whilst working for the respondent.

[40]Prior to the remedy hearing the respondent has obtained further information (page 86 of the bundle) that on 8 October 2021 the claimant was attending an EziDrops conference when it is alleged he should have been working for the respondent. There is conflicting evidence in relation to whether or not this was booked as leave for the claimant and I need not make a determination myself for the purpose of Polkey. Case Number: 3302529-30/2024 8

[41]However, Mrs Dorricott’s evidence is that despite that conflict of information, she would have been guided by the lead HR record which shows that the claimant did not have annual leave on that day. As such I conclude that had a fair procedure been carried out and further exploration conducted, Mrs Dorricott would have likely concluded that the claimant had worked for EziDrops on a day when he should have been working for the respondent.

[42]Further as to the investigation into the degree of the claimant's involvement in EziDrops, as part of the liability hearing the claimant did not disclose his work calendar for EziDrops. For the purposes of the remedy hearing, he has only disclosed the same post-dismissal. I conclude therefore that had Mrs Dorricott made such an enquiry, this information would not have been provided by the claimant because he continues to refuse to provide it even now. This would have been relevant evidence as to his involvement and work for EziDrops alongside his commitment to the respondent.

[43]The claimant's position is that this process was so unfair in these circumstances that it is impossible for the tribunal to look forward as to what the respondent would have done. I acknowledge this submission in the context that the decision was pre-determined. However, that goes directly to the conclusion that the respondent did not explore the degree of the claimant’s involvement because the decision was pre-determined.

[44]I conclude that had they done so they would have likely discovered and concluded that the claimant had attended a conference for EziDrops whilst working on company time. I also consider that Mrs Dorricott would have concluded from the claimant’s failure to disclose his EziDrops calendar that his involvement with EziDrops whilst on company time was extensive.

[45]In those circumstances I conclude that there is a 75% chance that the claimant would have been dismissed had a fair and reasonable procedure been followed.

[46]The compensatory award shall therefore be reduced by 75% to reflect this. Contributory fault – Basic award

[47]In relation to the conduct of the claimant prior to the dismissal I rely on the reasons in the liability Judgment as follows.

[48]At paragraphs 16 and 17, I concluded that there were provisions in the claimant's contract preventing him from having his own business whilst working for the respondent. He therefore breached his contract. Case Number: 3302529-30/2024 9

[49]I rejected the claimant’s assertion that he did not think this would be an issue because others had done so before and he had been provided with details of the company's patent lawyer. I rely on my observations at paragraphs 63 to 64 of the liability reasons.

[50]The claimant also used the respondent's resources to conduct this business, again as outlined in the liability reasons at paragraph 65.

[51]I consider that this conduct is such that it is just and equitable to reduce the basic award by 75%. Contributory fault – compensatory award

[52]Save in respect of the basic award, such conduct must cause or contribute to the claimant’s dismissal, rather than its fairness or unfairness.

[53]I conclude that the claimant's conduct was culpable and blameworthy as identified above. I also consider that it contributed to the claimant's dismissal. There was a clear breach of contract, and I consider that the claimant did conceal that from the respondent because he knew it was a breach.

[54]However, I do not consider that it is just and equitable to reduce the compensatory award further in circumstances where I have made a Polkey deduction. I have regard to the case law identified above. I step back and look at the case as a whole to ensure that the result is just and equitable. I consider that any deduction to the compensatory award for contributory fault overlaps with the findings made in respect of Polkey such that to apply a further deduction would not be just and equitable because it would amount to double counting.

[55]As such I make no further deduction to the compensatory award. Calculations

[56]Basic award – agreed by the parties at £17361.00 Less contributory fault reduction at 75% (£13020.75) Total £4340.25 Compensatory award Loss of basic salary at 16 weeks x £747 £11,952.00 Case Number: 3302529-30/2024 10 Loss of statutory rights £500.00 Loss of estimated commission (calculated based on agreed yearly average of £23,142.60) £7714.20 Loss of pension 4 months x £716.66 per month £2866.64 Unused holiday entitlement £1382.00 Less ex-gratia payment (£896.00) Total £23518.84 Less Polkey deduction at 75% (£17639.13) Total £5879.71 Total of basic and compensatory awards £10219.96 _____________________________ Employment Judge French Date: 1 April 2025 Sent to the parties on: 2/4/2025 N Gotecha For the Tribunal Office . Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case Number: 3302529-30/2024 1 EMPLOYMENT TRIBUNALS Claimant Respondent v 1. Mr B Gokani AFD Software Ltd Heard at: Watford (by CVP) On: 24 March 2025 Before: Employment Judge French Appearances For the first claimant: Mr S Harding, Counsel For the respondent, Mr N Fetto KC, Counsel RESERVED REMEDY JUDGMENT

Conclusions

[1]By Judgment of 17 December 2024, the claimant was unfairly dismissed.

[2]There is a 75 % chance that the claimant would have been fairly dismissed in any event.

[3]It is just and equitable to reduce the basic award payable to the claimant by 75 % because of the claimant’s conduct before the dismissal.

[4]The respondent shall pay the claimant the following sums: A basic award of £4340.25

[6]A compensatory award of £5879.71 Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.

[7]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply.

Evidence

[2013] IRLR 274

at para 24.

[9]The question for the tribunal is whether the particular employer (as opposed to a hypothetical reasonable employer) would have dismissed the claimant in any event had the unfairness not occurred.

[10]The Polkey adjustment is only applicable to the compensatory award, not the basic award.

[2007] ICR 825

UKEAT/0108/16/DM

[13]Further, the Tribunal may reduce the basic or compensatory awards for culpable conduct in the circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996.

[15]Conduct which was not known to the employer and cannot have caused or contributed to the dismissal may be taken into account Optikinetics Ltd v Whooley

[1999] ICR 984

UKEAT/0041/19

). It is also possible to make a reduction for contributory conduct even if, had the employer acted fairly, a dismissal would not have occurred at all (Wilkinson v DVSA

[2022] EAT 23

). Case Number: 3302529-30/2024 4

[18]In assessing contribution the tribunal should (Steen v ASP Packaging Ltd

UKEAT/0023/13

UKEAT/0184/15/JOJ

. Case Number: 3302529-30/2024 5

[2022] EAT 156

). Conclusions Mitigation of loss

Conclusions

background.