Mr R M Razick v West Hertfordshire Teaching Hospitals NHS Trust: 3303718/2023 and 3304143/2023
EMPLOYMENT TRIBUNALS
Case No 3303718/2023, 3304143/2023
Between
Mr R M RazickClaimantWest Hertfordshire Teaching Hospitals NHS TrustRespondent
Before
Employment Judge Alliott
Members
Mr P MillerMr A ScottMs Daisy van den Berg (instructed by counsel) for respondentDate 1 August 2025
JUDGMENT
[1]The claimant’s direct race and religion and belief discrimination and harassment related to race and religion and belief are out of time and it is not just and equitable to extend time. Consequently, there is no jurisdiction to hear them, and they are dismissed.[2]The claimant’s unfair dismissal (constructive) claim is dismissed. Approved by: JUDGMENT having been sent to the parties on 3 September 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The claimant was employed by the respondent from 15 October 2014 as an Endoscopy Decontamination Technician. At some stage the claimant was promoted to Production Lead of Endoscopy Decontamination. The claimant puts it in 2018, and Mandy Bailey gives evidence that it was in September 2019. We had no documentary evidence to verify the date of promotion.[2]The claimant resigned with immediate effect on 31 December 2022. By a claim form presented on 4 April 2023, following a period of early conciliation from 4 March until 4 April 2023, the claimant brings complaints of unfair dismissal (constructive) and race and religion and belief discrimination/harassment. The respondent defends the claims.[3]The second claim is a duplicate of the first.
The issues
[4]The issues were finalised by Employment Judge Young following a case management preliminary hearing heard on 3 January 2024. They are recorded as follows: “ 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 5 December 2022 may not have been brought in time.1.2 Were the discrimination and harassment complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Constructive unfair dismissal2.1 Was the Claimant dismissed?2.1.1 Did the Respondent do the following things:2.1.1.1 Between January and July 2021, was the Claimant subjected to a disciplinary investigation that was not conducted as per ACAS guidelines?2.1.1.2 Was the Claimant subjected to 3 disciplinary procedures in less than 12 months?2.1.1.3 Was the Claimant not fully supported in his role despite requests for support?2.1.1.4 Was the Claimant subjected to an intrusive and unfounded mental health assessment, with no apology given when it was seen to be unfounded?2.1.1.5 Did the Respondent ignore Occupational Health recommendations and dismiss and ignore the Claimant’s concerns?2.1.1.6 Was the Claimant’s grievance dismissed out of hand after taking over one year to complete?2.1.1.7 Was the Claimant harassed with work related emails whilst dealing with his father’s sudden death, and was the Claimant expected to attend an important meeting the day after his return to work?2.1.1.8 Was the Claimant pressured to accept a role he felt was unsuitable due to location and previous issues with the department?2.1.1.9 Did the Respondent fail to follow health and safety regulations by failing to provide the Claimant with suitable equipment and training?2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and2.1.2.2 whether it had reasonable and proper cause for doing so.2.1.3 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.2.1.4 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.2.2 If the Claimant was dismissed, what was the reason or principal reason for dismissal i.e., what was the reason for the breach of contract?2.3 Was it a potentially fair reason?2.4 Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?2.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. 3. Remedy for unfair dismissal3.1 Does the Claimant wish to be reinstated to their previous employment?3.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the Claimant?3.6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.6.3 If not, for what period of loss should the Claimant be compensated?3.6.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.6.5 If so, should the Claimant’s compensation be reduced? By how much?3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.6.7 Did the Respondent or the Claimant unreasonably fail to comply with the ACAS code by not following appropriate and recognised timescales, not enough notice given, grievance and second disciplinary not completed within a reasonable timescale, repeated attempts to get him to drop the grievance including an attempt by bribery and repeated refusal to consider all allegations made in grievance?3.6.8 If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?3.6.9 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?3.6.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?3.6.11 Does the statutory cap of fifty-two weeks’ pay or [£105,707] apply?3.7 What basic award is payable to the Claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? 4. Direct Race discrimination (Equality Act 2010 section 13)4.1 The Claimant’s race is Sri Lankan4.2 Did the Respondent do the following things:4.2.1 In October 2020, did the Claimant’s manager, Ms Bailey, make multiple race related comments regarding the Claimant’s hair.4.2.2 On 24 November 2020, did the Claimant’s manager, Ms Bailey, and a colleague, Saravana Subramani, confront the Claimant and made derogatory remarks to the Claimant.4.2.3 On 16 December 2020, when the Claimant called into work to report that his wife and son were unwell with Covid-19, did his manager, Ms Bailey “start screeching and shouting asking “do you get sick pay in your country? (Sri Lanka)”. Did Ms Bailey further state ““how come your family get sick if you are praying?” and ask, “Where is your God gone?”4.3 Was that less favourable treatment?4.4 The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were.4.5 If so, was it because of race?4.6 Did the Respondent’s treatment amount to a detriment?[5]Direct religious discrimination (Equality Act 2010 section 13)5.1 The Claimant’s religion is Muslim.5.2 Did the Respondent do the following things:5.2.1 During the period 19 October 2020 and July 2021, did the Claimant’s manager, Ms Bailey, make it difficult for the Claimant to attend Friday prayers.5.2.2 On 16 December 2020, when the Claimant called into work to report that his wife and son were unwell with Covid-19, did his manager, Ms Bailey “start screeching and shouting asking “do you get sick pay in your country? (Sri Lanka).” Did Ms Bailey further state “how come your family get sick if you are praying?” and ask, “Where is your God gone?”5.3 Was that less favourable treatment?5.4 The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were.5.5 If so, was it because of religious belief?5.6 Did the Respondent’s treatment amount to a detriment?[6]Harassment related to race (Equality Act 2010 section 26)6.1 Did the Respondent do the following things:6.1.1 On 24.11.2020 did Mandy Bailey tell Ruzni to go back to his own country?6.1.2 On 16.12.2020 did Mandy Bailey ask “do you get sick pay in your country? (Sri Lanka)” and also state that the absence would be marked as annual leave rather than sick leave as he was not born in this country.6.2 If so, was that unwanted conduct?6.3 Did it relate to race?6.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?6.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[7]Harassment related to religion (Equality Act 2010 section 26)7.1 Did the Respondent do the following things:7.1.1 From 19.10.2020 - July 2021 did Mandy Bailey make it difficult for the Claimant to attend Friday prayers7.1.2 On 16.12.20 - Did Mandy Bailey ask, “how come your family get sick if you are praying?” And “where is your God gone”7.2 If so, was that unwanted conduct?7.3 Did it relate to the Claimant’s religious or other belief?7.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?7.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[8]Remedy for discrimination8.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?8.2 What financial losses has the discrimination caused the Claimant?8.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?8.4 If not, for what period of loss should the Claimant be compensated?8.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?8.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?8.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?8.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?8.9 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify breach]?8.10 If so is it just and equitable to increase or decrease any award payable to the Claimant?8.11 By what proportion, up to 25%?8.12 Should interest be awarded? How much?” The law 5. Section 95(1)(c) Employment Rights Act 1996 states:- “95 Circumstances in which an employee is dismissed.(1) For the purposes of this Part an employee is dismissed by his employer if… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” 6. Section 98 Employment Rights Act 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, … (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 …(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.” 7. As per the IDS Employment Law Handbook “Unfair dismissal” at 1.35: “Section 95(1)(c) of the Employment Rights Act 1996 (ERA) states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. This form of dismissal is commonly referred to as “constructive dismissal”. In the leading case in this area, Western Excavating (ECC) Limited v Sharp [1978] ICR 221, CA, the Court of Appeal ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: “If the employer is guilty of conduct which is a significant breach going to the route of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.” And at 1.36. “In order to claim constructive dismissal, the employee must establish that: There was a fundamental breach of contract on the part of the employer. The employer’s breach caused the employee to resign. The employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal. Note that a constructive dismissal is not necessarily an unfair one –Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166, CA.” The evidence 8. We had a hearing bundle of 1902 pages. The claimant had prepared a separate bundle which we did not use as it contained the majority of the documents in the respondent’s bundle.
The evidence
[9]We had witness statements and heard evidence from:9.1 The claimant.9.2 Ms Mandy Bailey, Endoscopy Decontamination Manager for the Trust and the claimant’s line manager.9.3 Ms Catherine Holmes, Senior HR Advisor at the respondent.9.4 Mr Patrick Hennessy, Director of Environment at the respondent until he left in December 2022.[10]Both the claimant and the respondent provided us with a chronology. The time issue[11]Section 123(1) and (3)(a)(b) of the Equality Act 2010 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. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”[12]Given the date of the Acas EC certificate, anything prior to 5 December 2022 is outside the primary limitation period.[13]At the outset of this hearing, we raised the possibility of dealing with discrimination and harassment allegations as regards time as a preliminary issue. The respondent supported the proposition and the claimant’s representative indicated that she thought it made sense.[14]The discrimination and harassment claims relate to alleged conduct in October and on 24 November and 16 December 2020. The issue relating to making it difficult to attend Friday prayers is put as during the period 19 October 2020 to July 2021. That appears to be consequent upon a decision allegedly taken by Mandy Bailey in October 2020.[15]Consequently, all the allegations are out of time by nearly two years. Even if the conduct is extended to July 2021, then they are out of time by about 17 months.[16]As per the IDS Employment Law Handbook Practice and Procedure at 5.128: “While employment tribunals have a wide discretion to allow an extension of time under the “just and equitable” test in s.123, it does not necessarily follow that exercise of the discretion is a foregone conclusion. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisurelink [2003] IRLR 434, CA, that when tribunals consider exercising the discretion under what is now s.123(1)(b)Equality Act, “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.” The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit.”[17]And at 5.129: “A useful summary of the principles governing the exercise of the “just and equitable” discretion was set out by Mrs Justice Elizabeth Laing (as she then was) in Miller and Ors v Ministry of Justice and Ors and another case EAT 0003/15: The discretion to extend time is a wide one. Time limits are to be observed strictly in the employment tribunals. There is no presumption that time will be extended unless it cannot be justified. The reverse is true: the exercise of discretion is the exception rather than the rule. If a tribunal directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, “perverse”, ie no reasonable tribunal properly directing itself in law could have reached it, or the tribunal failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence. What factors are relevant to the exercise of discretion, and how they should be balanced, are a matter for the tribunal. The prejudice that a respondent will suffer from facing a claim which would otherwise be time barred is customarily relevant in such cases. The tribunal may find the checklist of facts in section 33 of the Limitation Act 1980 helpful but this is not a requirement and a tribunal will only err in law if it omits something significant.”[18]We heard evidence from the claimant as he had not dealt with the time issue in his witness statement. The claimant suggested that in October-December 2020 he did not really realise that he was being subjected to discriminatory conduct or harassment and thought that that was just the way things were. He also said that he did not take action as he regarded the issue as an ongoing one and at one stage suggested that he did not know he could bring a claim.[19]That said, the claimant told us that he spoke to Acas about proceedings in January 2021 and went to the Citizens Advice Bureau in about February 2021.[20]The claimant also told us that he approached his trade union to see if he could join and obtain advice and, unsurprisingly, that was declined.[21]By about the summer of 2021 the claimant was being assisted by Ms Sarah Vyse, who has represented the claimant today.[22]Whatever the claimant’s knowledge of his rights, it is noticeable that in his grievance dated 1 October 2021 the claimant complains of: “Permitting and/or accompanying acts of bullying, harassment and racism.”[23]In the details of his grievance the claimant raises two issues, namely: A comment from Mandy Bailey “You wouldn’t receive this sick leave and pay if you were back in your country”. A comment by Mandy Bailey about the claimant’s hair (“Afro hair”).[24]Whilst two of those issues appear as factual allegations in the discrimination and harassment claims, three other factual allegations are not included in the grievance. Those three other factual allegations only became apparent when the claimant clarified his claims in late 2023, about three years after the event.[25]By the summer of 2022 the claimant had seen and taken advice from a solicitor.[26]On 11 August 2022 the claimant received the grievance outcome which was that his complaints of bullying, harassment and racism were rejected. Even at that point the claimant delayed until April 2023 until presenting his claim.[27]By 9 November 2022 the claimant was seeking a negotiated settlement agreement in line with Acas guidelines.[28]We have taken into account the following matters: Length of delay[29]The length of the delay in the context of the employment tribunal is significant at two years. The explanation of the delay[30]Whilst there may have been some confusion or doubt in the claimant’s mind at the end of 2020 as to his rights, we find claims of ignorance to be unconvincing as time went on. The claimant was clearly taking advice from Acas and the Citizens Advice Bureau, had help from Ms Vyse in mid-2021 and saw a solicitor in the summer of 2022. We find any ignorance of the law on the part of the claimant was unreasonable as he clearly had access to legal advice. The claimant did take steps to obtain legal advice. Ongoing internal procedure[31]We have taken into account that the claimant lodged a grievance alleging racism in October 2021 but that had been rejected by 11 August 2022. Balance of prejudice/cogency of evidence[32]On three of the factual allegations, we find that the respondent would be significantly prejudiced by only learning of the allegations some three years after they are said to have happened. We find that Mandy Bailey would be prejudiced by not being in a position to have investigated the issues earlier.[33]Having taken into account all the circumstances of the case, in our judgment, the balance of prejudice comes down against allowing an extension of time.[34]Consequently, we have concluded that the claim was not presented within a further time that was just and equitable.[35]Consequently, there is no jurisdiction to hear the discrimination and harassment claims and they must be dismissed.
The facts
[36]The claimant was employed by the respondent from 15 October 2014 as an Endoscopy Decontamination Technician. As recited in the introduction, there is some doubt as to when he was promoted to Production Lead of Endoscopy Decontamination. The claimant says it was in 2018. Given that some of the allegations against the claimant that were subsequently made date back to early 2019, it may be that the claimant’s attitude towards his colleagues changed once he was promoted and became their supervisor.[37]The claimant accepted that until about late 2020 he got on well with Mandy Bailey. She supported him in his application for promotion. The claimant attended Mandy Bailey’s wedding party as a friend in 2019 and invited Mandy Bailey to his wedding although she could not attend as she was abroad at the time. Mandy Bailey bought the claimant a present when his son was born. Although the race and religion and belief discrimination and harassment claims against Mandy Bailey have been dismissed, we note that Mandy Bailey has a mixed-race child and mixed-race grandchildren.[38]Mandy Bailey gave evidence that sometime in late 2020 the claimant’s behaviour seemed to change quite drastically and suddenly he started to get into disagreements with colleagues. When asked why she thought that might have been she could give no reason.[39]Unfortunately, in October, November and December 2020, Mandy Bailey’s mother was seriously ill and sadly she died at the end of 2020. During that time, for obvious reasons, Mandy Bailey was going to and from her parents’ home in Kent in order to care for her mother and, following her death, having to care for her father. Mandy Bailey worked across three sites, namely Watford, Hemel Hempstead and St Albans. The claimant was primarily based at Watford and consequently, Mandy Bailey was not always working at the same location as the claimant. In her witness statement Mandy Bailey refers to her caring commitments and states:- “I think this is one of the reasons that it took me a while to notice the impact Mr Razick’s behaviour was having on other members of the team as I was stressed and preoccupied and I think staff were reluctant to add additional pressure to me by raising concerns earlier.”[40]The claimant’s essential complaint is that in November 2020 all his colleagues conspired against him either to invent complaints about his conduct or misinterpret lighthearted exchanges that constituted ‘banter’. In the circumstances we have examined closely how it is that the claimant became subject to what has been referred to as the first disciplinary process.[41]The disciplinary investigation report dated 3 April 2021, recites as follows:- “After another recent argument with a technician, RR [the claimant] was witnessed making a group apology for apparent inappropriate behaviour. This was then reported to RR’s Grandparent Manager, Antonio Cecco, Head of Integrated Decontamination. Due to the nature of what had been reported Antonio Cecco had meetings with the individual team members to explore what has been happening with RR in the department. During these meetings it became apparent that there had been many occurrences of inappropriate and unprofessional behaviour by RR towards the other staff members.”[42]The other technician involved was Saravana Subramani, an Endoscopy Decontamination Technician supervised by the claimant. He made a statement on 22 December as follows:- “I am Saravana Subramani working as an Endoscopy Decontamination Technician at WGH since Feb 2019 and have been working with Ruzni since then. On 23 Nov 2020 morning around 08:30 am I was at the system in the dirty area reading Life in UK questions after I had completed all my assigned works in the morning. And Ruzni came in to me in a very rude manner and told me that I cannot use the system for any of the personal use. And he said that the management would take severe action against me if did it again. So I stopped what I was doing and went straight to my manager Mandy Thornton [Bailey] and requested her if I can’t talk to her for a minute and informed her about what I was doing and what Ruzni had told me so she said she will discuss with me after few minutes as she was held up with her works. Later Mandy discussed with me what had happened and I shared that he was very rude and had been partial towards me because when he told me of my colleague Claudia came to me and said that on (pr)evious day when Claudia was using the system in clean area to read same Ruzni had told her “No problem in using the system for this but don’t disclose it to others”. So why should he be so intimidating towards me and that made me feel cornered. Not just this incident but there were many instances where he just walks to me and would show abusive manner by showing his middle finger and when I correct him not to do that to me because I feel offended then he would change the topic and say “oh come on, I was just kidding” but I have told him many times not to do that with (m)e but he still repeats and would say he did it for fun but didn’t mean it. Also there were instances when he would come and lift his apron to me and will walk away smiling saying that he is just playing with me. So when I shared all these Mandy reassured me and told me to get back to work and would have a discussion with Ruzni the next day. On 24 Nov 2020, Mandy had called Ruzni and had enquired with him personally too. And called both of us and enquired with us and I said all that I had told her the previous day Ruzni was not ready to listen either to what I was saying not to Mandy and left the discussion and while going he went behind Mandy and again showed me his middle finger which I immediately reported to Mandy. Mandy told me that as he is not ready for an open discussion she may have to take us to our Head of Integrated Decontamination for further and enquiry.”[43]It is against that background that Mandy Bailey escalated the matter to Antonio Cecco.[44]It is clear that Antonio Cecco then went and spoke to a number of technicians with Liz Kearney acting as a notetaker and we have the four-page document that was subsequently produced. He spoke to Saravana on 25 November 2020, Claudia, Lucy and Helen on 26 November 2020, Dean and Jibu John on 2 December 2020 and Janet, Yvonne, Natalie, Mandy and Lucy on 11 December 2020. We do not set out here in full the allegations but a large number of serious allegations were made concerning the claimant’s conduct. Three female technicians and one male technician complained of being struck by the claimant. One particularly unpleasant incident was the claimant punching Natalie on the arm after she had a blood test, knowing she had had a blood test. The incident was witnessed by Yvonne. In addition, Claudia said that the claimant slapped her leg as a joke saying he thought he saw a mosquito but the smack was hard. Many of the technicians referred to the claimant routinely showing obscene gestures (showing the middle finger) to them. They referenced the claimant threatening to report the technicians to Antonio on a regular basis. Saravana complained of bullying and Yvonne commented that the claimant bullied Ken. The claimant was referred to as being rude. Mandy Bailey referred to the claimant shouting at her and acting in a generally disrespectful way to his line manager. Lucy complained of an incident where the claimant was physically intimidating and she stated she felt bullied at work and did not feel safe working with the claimant.[45]Saravana Subramani’s witness statement states as follows:- “On 9th Dec 2020 had clinical governance at the unit and had Pentax training at the unit and after the training he had apologised to all the staff for showing middle finger and for slapping on Claudia’s thigh.”[46]In cross examination the claimant accepted that he apologised to the team on that occasion.[47]Against that background, we find that it is hardly surprising that the claimant was invited to an investigation meeting on 4 January 2021. The meeting was conducted by Antonio Cecco and various allegations were put to the claimant. He suggested that he had only tapped Claudia and that it was a minor hit on Lucy. He suggested showing the middle finger was just having a laugh but generally denied all the allegations.[48]The respondent conducted an extremely thorough investigation and took detailed witness statements from all the staff involved.[49]In his cross examination the claimant repeatedly referred to his conduct as just ‘banter’ and that it reflected a general culture within the department. We totally reject the claimant’s suggestion. In our judgment, it is inconceivable that the depth of detail provided by nine technicians and the claimant’s line manager could possibly be invented or be part of a conspiracy. The evidence obtained demonstrated a pattern of very unpleasant and bullying behaviour by the claimant towards not only those that he supervised but his line manager.[50]On 8 January 2021 the claimant was notified that the disciplinary policy would be initiated against him. The letter sets out five allegations as follows:- “Between 1 January 2019 and 3 January 2021 1. Making inappropriate physical contact with colleagues including but not limited to slapping Claudia Brito on the leg and arm, punching Lucy Muthoni on her arm, slapping Ken Burry on his back, punching Natalie Airey, barging into Saravana Subramani. 2. Making an obscene gesture at or in the presence of but not limited to Jibu John, Claudia Brito, Natalie Airey, Yvonne Finn and Saravana Subramani. 3. Making threats to report colleagues to Mandy Bailey, Antonio Cecco or HR without good cause and in an intimidating manner. 4. Playing an inappropriate music video, showing provocative dancing, to Saravana Subramani on YouTube making him feel uncomfortable. 5. Being insubordinate towards your line manager Mandy Bailey, undermining her by actions includinga. Not carrying out instructions at all or in a timely manner, challenging requests persistently without good reason.b. Shouting at her.c. Putting the phone down on her.d. Repeatedly walking into her office and interrupting her when she is in a meeting.[51]On 17 February 2021, the claimant was invited to attend a disciplinary investigation meeting on 2 March 2021. The claimant confirmed to us that prior to that meeting he had all the colleague statements, and the notes of the meeting on 2 March 2021 indicate that the claimant had clearly gone through those witness statements as he references there being about 70 allegations made against him. The claimant essentially denied most things and trivialised the rest.[52]On 3 April 2021, the respondent produced a 129 page disciplinary investigation report which is extremely thorough. The conclusion was:- “There appears to be a pattern of childish, antagonistic behaviour with most of the interviewed staff commenting that they find the workplace a stressful environment and some even commenting that they no longer enjoyed coming to work. CB [Claudia Brito] alleges that two agency staff came and left stating it was because of RR and talks about the “tension” between RR and the staff members. According to CB, “These things have been accumulating for about two years and just became really annoying and our response was we just started to ignore them.”[53]It has been submitted to us that it is odd that the range of allegations going back nearly two years could all of a sudden emerge and it was questioned why the claimant was not dealt with earlier and given an opportunity to change his behaviour. We do not find it odd. Mandy Bailey told us that she did not witness or become aware of the majority of the claimant’s conduct towards those that he supervised. Clearly Mandy Bailey would have been aware of the claimant’s conduct towards her but it appears that she merely told him to stop and did not escalate it further. We do not find it surprising that, in the face of a bullying and intimidating supervisor, the technicians just got on with their jobs without making formal complaints. We do not find it surprising that once senior management had begun investigating the claimant, a whole raft of allegations emerged.[54]On 12 April 2021, the claimant was temporarily redeployed to the Decontamination R&D.[55]From 22 April to 10 May the claimant was on sick leave due to IBS.[56]On 27 April 2021 the claimant was informed that his disciplinary hearing date would be 24 May.[57]On 17 May 2021, the claimant replied confirming that he would attend and asking for the hearing invitation letter with the hearing pack.[58]On 19 May 2021, the claimant was informed that the documents were ready to be collected which the claimant did on that day.[59]The respondent’s disciplinary policy contains the following:- “10 Disciplinary hearing 10.1 The employee will be given a minimum of 10 days notice of the disciplinary hearing. This notice will include: Purpose of the hearing. Details of the allegations to be considered. Names of panel members and any witnesses to be called. The management case. The right to be accompanied by a trade union representative or work colleague.”[60]Whilst the claimant clearly had more than 10 days notice of the disciplinary hearing, he only picked up the pack on 19 May. That was obviously only five days before the disciplinary hearing.[61]On 20 May 2021, the claimant was emailed to be told that if he wanted to submit documents or evidence, he should send it by 10am on 24 May 2021 and the claimant responded by saying he definitely would submit the evidence before 10am on 24 May 2021. We have an email sent on 19 May 2021 to the claimant which contains the following:- “If you are unable to attend on Monday please let us know and we can reschedule for a following date.”[62]Hence, although the claimant did not have 10 days’ notice of the disciplinary pack, he was given an opportunity to request that the hearing be rescheduled and he did not do so. We find that any breach of the policy was minor and inconsequential and did not constitute a breach of the claimant’s contract of employment.[63]The disciplinary hearing was heard on 24 May 2021. The claimant confirmed that he was content to proceed without a colleague or representative.[64]On 26 May 2021, the claimant was sent a disciplinary hearing outcome letter. Allegations 1, 2 and 5 were upheld. The hearing outcome was that the claimant was issued with a first written warning to remain on his file for 12 months. Further recommendations were made. The claimant was to be referred to Occupational Health to support him in managing his stress; bespoke training was to be undertaken with all employees to raise awareness of acceptable behaviours and how to treat others with respect and dignity; the claimant was requested to complete outstanding equality and diversity training; the claimant’s colleagues were also going to be instructed to complete equality and diversity training; and the claimant was asked to engage in reflective learning and professional development regarding his behaviour at work.[65]Given the nature and extent of the claimant’s misconduct, we find that the respondent’s approach was very supportive of the claimant in his role.[66]On 9 June 2021, the claimant requested an extension of time to lodge an appeal and this was granted to 21 June 2021. The claimant was provided with a copy of the transcript of the disciplinary hearing.[67]On 18 June 2021, the claimant appealed the disciplinary hearing outcome.[68]In July 2021, the respondent produced a disciplinary appeal report (erroneously titled grievance appeal report).[69]On 2 July the claimant was invited to the appeal meeting on 15 July 2021. The appeal hearing was heard on 15 July 2021 and the claimant was sent an outcome letter on 22 July 2021. The appeal was rejected.[70]Issue 2.1.1.1 is:- “Between January and July 2021, was the claimant subjected to a disciplinary investigation that was not conducted as per Acas guidelines?”[71]We find that between January and July 2021 the claimant was subjected to a disciplinary investigation. We find that the disciplinary process was not in breach of Acas guidelines. In actual fact, it emerged that the complaint was actually that the claimant got the disciplinary hearing pack less than 10 days before the hearing took place. We have already found that this was minor and inconsequential. Consequently, the facts alleged in issue 2.1.1.1 are not proved.[72]The claimant returned to the Endoscopy Decontamination Department on 5 July 2021. Mandy Bailey had a meeting with the claimant to welcome him back and we have the notes which indicate that they discussed the claimant’s reintegration into the department. He was going to work on the shop floor to refamiliarise himself with the tasks required having been absent for some three months.[73]Concerns were raised about the claimant’s conduct from his first day back. We have meeting notes arising out of meetings between Antonio Cecco, Mandy Bailey and the other production lead (Helen Robnett). The notes for Monday 5 July 2021 record:- “Ruzni went into the dirty area with a notebook sat down and started recording all the staff activities, resulting with all the staff feeling extremely uncomfortable and anxious. MB requested Ruzni to stop using the notebook as it was making staff feel uncomfortable, but he continued.[74]Various other conduct issues continued to arise until there was an incident on 2 August 2021 between the claimant and Saravana Subramani. The conduct involved not only taking notes and checking the work of colleagues persistently but intimidating a colleague by telling him to put on a mask, swearing, running towards a colleague as if to hit them and throwing a punch in the face of a work colleague but falling just short of the face saying “Ah you’re scared of me. There was then a confrontation with Saravana Subramani whereby it was alleged that the claimant had blocked a doorway and behaved in a threatening and intimidating manner.[75]The issues were raised with the claimant on 2 August 2021 and the meeting notes indicate that Antonio Cecco had concerns about the claimant’s health and decided to refer him to Occupational Health. The claimant was placed on medical suspension.[76]Once again, full witness statements were taken from six colleagues and the claimant and most of them were interviewed.[77]On 3 August 2021, the claimant was referred to Occupational Health due to concerns regarding his mental health. Given the nature of the allegations against the claimant we find that that referral was entirely justified. As set out in the referral:- “Ruzni has not apparently accepted his behaviours were wrong at all regarding his recent disciplinary sanction and they have since escalated.”[78]In our judgment, the claimant’s conduct undoubtedly raised serious questions as to his mental health.[79]On 19 August 2021, Occupational Health reported as follows:- “He did not admit to any problems with mental illness apart from feeling stressed about the situation he is in, that has caused his IBS to flare up earlier this year.”[80]The claimant was judged fit for work.[81]Issue 2.1.1.4 is:- “Was the claimant subjected to an intrusive and unfounded mental health assessment, with no apology given when it was seen to be unfounded?”[82]We find that the referral for a mental health assessment was not intrusive and unfounded. We find that there was no obligation or duty on the respondent to offer an apology when Occupational Health indicated that the claimant did not have a mental illness. Consequently, we find the facts alleged in issue 2.1.1.4 are not proved.[83]On 19 August 2021, the claimant was notified that he was to be subject to a disciplinary investigation.[84]On 7 September 2021, the claimant was reallocated to the Environment Department.[85]On 10 November 2021, the respondent produced a disciplinary investigation report which is 100 pages long.[86]On 20 January 2022, the claimant was invited to a disciplinary hearing which was held on 11 February 2022. The claimant was supplied with all information in advance of the hearing.[87]On 1 March 2022, the claimant was informed of the outcome which was that three of the five allegations were upheld and the claimant was given a final written warning. Due to the fact that it was clear that relationships had broken down between the claimant and his colleagues within the Endoscopy Decontamination Team, the disciplinary panel decided to redeploy permanently the claimant to another role and he was to be placed in the redeployment process. The claimant did not appeal that disciplinary outcome.[88]In the Environment Department the claimant worked as a Water Flusher. He was supposed to be supplied with PPE which included safety footwear. For whatever reason the claimant was not supplied with the safety footwear until early December 2021.[89]The claimant’s line manager in the Environment Department was Lakshmi Polassery. On the 8 December 2021 there was an incident between the two of them. Lakshmi Polassery puts it as follows:- “Today morning (08/12/21) 9am Ruzni Razick was in the office to sign in. As I noticed he was not wearing his safety footwear, I had asked him to wear it on site. But he replied he would only wear it in plant areas and not wards as health and safety rules doesn’t ask for it and he is not carrying any tools other than a tablet. He mentioned he is not a builder to wear safety footwear… He then walked off and soon returned to confirm that he is not going to wear it. At this point, Nick did confirm politely that all staff were required to wear correct PPE and that we have a duty of care to all staff.”[90]The exchange was witnessed by Nick Nicolaou and Casey Jackson who sent emails confirming the claimant was acting in an intimidating way and was rude and abrupt.[91]On 8 December 2021, the claimant was suspended on full pay.[92]An investigation was carried out and on 13 April 2022 the claimant was notified that there was going to be a disciplinary investigation.[93]Once again, a disciplinary investigation report was produced on 22 July 2022. It is 112 pages long. It contains the investigation meeting with the claimant on 20 May 2022.[94]The claimant attended a disciplinary hearing on 2 August 2022 and on 11 August 2022 he was provided with the outcome by Patrick Hennessy. One allegation was not substantiated and, on the basis that the claimant did not receive the level of support expected following his earlier redeployment, it was confirmed that there would be no formal sanction as an outcome. The claimant was referred to the support offered by Vita Health.[95]Issue 2.1.1.2 is:- “Was the claimant subjected to 3 disciplinary procedures in less than 12 months?”[96]The claimant was subjected to three disciplinary procedures in less than 12 months and, consequently, the facts alleged in issue 2.1.1.2 are proved.[97]We find that each of the disciplinary procedures was entirely justified due to the nature of the allegations raised against the claimant. Consequently, we do not find that subjecting the claimant to three disciplinary procedures in less than 12 months was a breach of the claimant’s contract of employment.[98]Issue 2.1.1.9 is:- “Did the respondent fail to follow health and safety regulations by failing to provide the claimant with suitable equipment and training?”[99]Patrick Hennessy accepted that the claimant’s safety footwear should have been provided sooner than it was. It is clear that the claimant’s role as a water flusher was not complicated and he had a day ‘on the job’ training shadowing another colleague. We express no view as to whether that was a failure to follow health and safety regulations.[100]We find that there was a failure to provide safety footwear from 7 September until early December 2022. We find that there was no failure to provide suitable training. We find to that extent the facts alleged in issue 2.1.1.9 are proved.[101]We find that the late provision of safety footwear was not a fundamental breach of the claimant’s contract of employment. In any event, we find that it was not conduct likely to breach the implied term of mutual trust and confidence as the claimant’s attitude to the safety footwear was that he refused to wear it as directed. It is clear to us that he did not want the inconvenience of having to wear it and wanted to carry on using his own footwear.[102]Issue 2.1.1.5 is:- “Did the respondent ignore Occupational Health recommendations and dismiss and ignore the claimant’s concerns?”[103]Although the first disciplinary outcome letter recommended a referral to Occupational Health concerning the claimant’s IBS, in fact he had been already referred on 13 May 2021 due to his sickness absence.[104]Be that as it may, the Occupational Health report is dated 6 June. It recommends that a stress risk assessment be undertaken with the claimant’s manager.[105]In due course Antonio Cecco conducted a stress risk assessment. It was sent to the claimant on 16 June 2021. On 21 June 2021 the claimant sent back his own stress assessment.[106]We have compared the two documents. It is fair to say that Antonio Cecco objectively identified the relevant stressors as arising out of the disciplinary process. The claimant’s document principally identifies as stressors his complaints about the disciplinary process. There do appear to be two nondisciplinary related stressors, namely changing tasks without being noted in minutes and being given tasks to do but then undermined when they have been completed.[107]Clearly, there was a difference of emphasis in so far as the stressors were concerned. The respondent’s action plan referenced the claimant engaging with the disciplinary process. It also referenced Antonio Cecco supporting the claimant by requesting prompt sharing of information.[108]The claimant’s action plan references his current complaints but does not make suggestions as to what needs to be done or by whom.[109]Other than a bald statement from the claimant that his suggestions were ignored, we have had no information as to what, if anything, happened as far as the stress risk assessments are concerned. It may be that Antonio Cecco did support communication as it was around this time that the claimant got the extension of time for his appeal and was sent the transcript.[110]We find that the respondent did not ignore Occupational Health recommendations for a stress risk assessment. We find that the respondent did not dismiss and ignore the claimant’s concerns. Whilst the claimant was raising issues as stressors his form did not propose any solutions.[111]The Occupational Health report dated 19 August 2021 made no recommendations. The Occupational Health report dated 18 January 2022 made general recommendations such as meetings with managers and human resources to match expectations and share concerns. However, since the claimant was not at work it cannot be said that those recommendations were ignored as they could only take place once the claimant returned to work.[112]The Occupational Health report dated 1 July 2022 recommended the rapid resolution of issues so that the claimant could move on. The then outstanding grievance and disciplinary processes were dealt with on 2 and 3 August 2022 and the claimant was given the outcome of both on 11 August 2022. Again, the recommendation was not ignored.[113]Consequently, we find the facts alleged in issue 2.1.1.5 are not proved.[114]Issue 2.1.1.3 is:- “Was the claimant not fully supported in his role despite requests for support?”[115]This is a very general allegation. As already noted, the outcome of the first disciplinary procedure made a number of recommendations which included referring the claimant to Occupational Health, training and reflective learning. We find that those were supportive steps albeit within the context of a disciplinary outcome. The claimant was referred to Occupational Health and the recommendations for a stress risk assessment were carried out. On his return to the Endoscopy Decontamination Department on 5 July 2021 Mandy Bailey was supportive in seeking to reintegrate him into the team. Thereafter there were weekly meetings with the claimant. For example, we have the minutes of a meeting on 12 July 2021 wherein Mandy Bailey asked how the claimant was settling in and they discussed any other support needed.[116]The outcome of the second disciplinary process indicated that training about appropriate behaviours to ensure everyone was clear what the expected standards of behaviour were should be provided. The claimant was offered the support of Vita Health, a free and confidential information, support and counselling service available to all Trust employees. As will be seen, the respondent’s redeployment policy allowed for three months whereas the claimant in actual fact got six months. Further, Katie Holmes actively supported and encouraged the claimant in obtaining alternative roles.[117]No specific requests for support have been shown to us. We have seen emails from July 2021 wherein the claimant complains that he cannot approach his line manager but, as already recorded, on 12 July 2021 the claimant had a specific meeting with Mandy Bailey and support was discussed.[118]Consequently, we do not find that the claimant was not fully supported in his role despite requests for support. As such, the facts alleged in issue 2.1.1.3 are not proved.[119]Issue 2.1.1.7 is:- “Was the claimant harassed with work related emails whilst dealing with his father’s sudden death, and was the claimant expected to attend an important meeting the day after his return to work?”[120]On 29 September 2022 the claimant emailed Paddy/Patrick Hennessy stating:- “I just want to make you aware that my father passed away suddenly yesterday and I have had to travel home urgently. Due to my current circumstances I will not be in a position to deal with any emails or meetings presently. I will deal with any communications in due course.”[121]Paddy/Patrick Hennessy replied on 29 September 2022 as follows:- “Please accept my deepest condolences. I will ask the division to place you on a weeks’ compassionate leave followed by accrued annual leave.”[122]On 6 October 2022, the claimant emailed Paddy/Patrick Hennessy setting out his travel arrangements and indicating he would be returning to the UK on 11 November 2022.[123]On 12 October Paddy/Patrick Hennessy replied:- “I’m deeply sorry to learn of the passing of your father. I hope you and family are doing ok under the circumstances. Please see attached letter confirming our discussions on 9 and 16 September and also confirming your compassionate and annual leave request. I would like to arrange a further meeting on your return to the UK and have booked a meeting room in Maple House at 14:00 on 14 November 2022. Please accept my deepest sympathies for the loss of your father.”[124]That email had a letter dated 12 October 2022 attached. The meeting on 14 November 2022 was to progress the claimant’s redeployment as a Band 4 Water Flusher which had been discussed at a meeting on 9 September 2022. The letter also offered the Wellbeing Team to arrange private counselling sessions for his mental health.[125]On 24 October 2022 the claimant was sent a letter, presumably by email, to his work address, confirming arrangements for the grievance appeal to be heard on 28 November 2022.[126]On 9 November 2022, the claimant replied to the email/letter dated 12 October 2022 indicating that he would not arrive back until November 13 and complaining that he was being expected to deal with work matters whilst on annual and compassionate leave. Paddy/Patrick Hennessy replied to the claimant on 9 November 2022 stating that the planned meeting for 14 November would be stood down and that was confirmed in a letter dated 11 November 2022. Paddy/Patrick Hennessy made the point that the letters had been sent to the claimant’s work email and there was no expectation that he would have to check that whilst he was on leave.[127]We note that in the letter dated 9 November wherein the claimant complains about having to deal with work matters whilst on leave, he nevertheless indicates that he wants to start negotiations for a settlement in line with Acas guidelines. The letter also states:- “I would request that any negotiation and settlement is concluded by December 31 otherwise I shall have no option but to resign on the grounds of constructive dismissal and take the case to employment tribunal for resolution.”[128]We find that the claimant was clearly capable of dealing with work matters when it suited him.[129]We find that the claimant was not harassed with work-related emails whilst dealing with his father’s sudden death. We find that the claimant’s request for bereavement leave and annual leave was accommodated. Letters referring to meetings on his return were sent to his work email address. Whilst the claimant was expected to attend an important meeting on 14 November 2022, when the claimant indicated that that would be the day after his return to work it was cancelled. Consequently, we find the facts alleged in 2.1.1.7 are not proved.[130]Issue 2.1.1.8 is:- “Was the claimant pressured to accept a role he felt was unsuitable due to location and previous issues with the department?”[131]This allegation is in the context of the claimant being recommended for permanent redeployment following the outcome of the third disciplinary procedure.[132]On 22 March 2022 the claimant had a meeting with Katie Holmes to have the redeployment process explained and discussed. The redeployment process was usually for 12 weeks. The claimant would be sent weekly a list of the available vacancies. He could apply for any vacancy of course, but the redeployment process meant that he would only be guaranteed an interview for any role one band above or one band below his existing Band 4 status. If the claimant was offered a job following an interview, then there was usually a four-week trial period in the new role during which the claimant could leave if he did not like the job.[133]In early May 2022, the claimant expressed interest in a Clinical Support Information Analyst vacancy. Katie Holmes made enquiries in order to set up an interview but it would appear that by 6 May 2022 the claimant was no longer interested as she sent him an email stating:- “Are you sure that you don’t want to attend the interview for this? Even if it is just for the interview experience and to meet the manager. You may find that you really like the role?”[134]On 12 May 2022, the claimant responded but not about the Clinical Support Information Analyst role.[135]On 13 May 2022, Katie Holmes emailed the claimant to encourage him to attend the interview stating that even if he was offered the job then he could always decline it. The claimant replied on 16 May 2022 saying:- “If you feel it would be advisable for me to attend the interview as part of the process, then I will take your advice and attend for an interview. However, as previously mentioned there are several reasons as to why I was not interested in the role and would be unlikely to accept it were it offered to me.”[136]On the back of that email Katie Holmes caused automatically generated emails to be sent to the claimant to arrange an interview.[137]On 26 May 2022, the claimant emailed Katie Holmes to state:- “I believe that I clearly stated in my previous email reasons why I did not wish to attend for interview but these valid reasons seem to be ignored for the purposes of pursuing a tick box exercise in the deployment process.”[138]We observe that that is inaccurate as the claimant had indicated that he would attend for an interview.[139]On 26 May 2022, Katie Holmes replied:- “Firstly and foremost, you are not obliged and are absolutely not being forced to attend this interview.”[140]We find that Katie Holmes was doing no more than guiding the claimant and encouraging him to engage with the redeployment process. We find that Katie Holmes was not pressuring the claimant to accept a role he felt was unsuitable due to location and previous issues with the department. Consequently, we find the facts alleged in issue 2.1.1.8 are not proved.[141]Issue 2.1.1.6 is:- “Was the claimant’s grievance dismissed out of hand after taking over one year to complete?”[142]The claimant’s grievance was submitted on 1 October 2021. The grievance hearing was on 3 August 2022 and the outcome was communicated on 11 August 2022. Thus, the grievance was dealt with in slightly over 10 months albeit that the appeal was not dealt with until after the claimant left the respondent’s employment. The grievance was dismissed. We have considered whether it was dismissed “out of hand”.[143]The respondent thoroughly investigated the grievance, interviewing three members of staff as well as the claimant. A 67-page grievance investigation report was produced on 1 July 2022. The report addresses the delay and some of the subject matter of the grievance as follows:- “RR’s grievance, in part, referred to concerns he had about incidents that occurred which led to him being the subject of two disciplinary hearings dated in May 2021 and February 2022, the earlier date was appealed. It was explained to RR that the investigating officer could not re-investigate details pertaining to any disciplinary cases within this grievance investigation. RR’s concern that elements of his grievance would not be investigated led to some delays in him agreeing to attend his grievance investigation meeting between November 2021 and a meeting with him taking place in February 2022.”[144]The claimant asked for a postponement of the grievance hearing scheduled for 21 July 2022 which was granted. The hearing was rescheduled for 3 August 2022. The hearing took place and the claimant was informed of the outcome on 11 August 2022. The claimant was informed in a letter dated 11 August 2022 which deals with all of his grievances save for “false and unsubstantiated claims presented against him” arising out of the disciplinary process. We find that for obvious reasons that allegation could not be dealt with within the grievance process as it had already been dealt with within the disciplinary process.[145]Consequently, we find that the claimant’s grievance was not dismissed out of hand. Consequently, we find the facts alleged in issue 2.1.1.6 are not proved.[146]From our findings above, we find that the respondent did not breach the implied term of mutual trust and confidence.[147]Consequently, we do not go on to consider whether the claimant affirmed the contract nor do we address what the claimant's reasons for resigning were.[148]We find that the claimant was not constructively unfairly dismissed and the claimant’s claim is dismissed. Approved by: