Mr M Knox v Network Rail Infrastructure Ltd: 3304543/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 3304543/2022, 3304545/2022, 3305170/2022
Between
Mr M KnoxClaimantNetwork Rail Infrastructure LtdRespondent
Before
Employment Judge Shastri-Hurst, Ms C Bailey,Mr J Tunley (instructed by counsel) for claimantMr J Crozier (instructed by counsel) for respondentDate 19 November 2024
JUDGMENT
[1]The claim of automatic unfair dismissal under s152 of the Trade Union and Labour Relations (Consolidation) Act 1992 is not well-founded and fails;[2]The claim of ordinary unfair dismissal is well-founded and succeeds;[3]The claimant caused or contributed to the dismissal by blameworthy conduct, and it is just and equitable to reduce the compensatory award payable to the claimant by 10% under s123 of the Employment Rights Act 1996;[4]No reduction is applied to the basic award under s122 of the Employment Rights Act 1996;[5]No reduction to the compensatory award is applied under the case of Polkey;[6]The claimant’s claim of wrongful dismissal is well-founded and succeeds;[7]The Tribunal rejected the claimant’s request for an order for reinstatement. JUDGMENT having been handed down to the parties on 12 November 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant was employed by the respondent from 1 May 1995 to 1 February 2022, when his employment was summarily terminated by reason of gross misconduct. At the time of his dismissal, he held the position of Signaller at Thames Valley Signalling Centre (TVSC).[2]The claimant was an active member of the National Union of Rail, Maritime and Transport Workers (“the RMT”) and became a representative of the RMT in 2004. In 2012, the claimant became an Area Council Representative of the RMT. It was common ground between the parties that he would carry out trade union duties from time to time.[3]The incident leading to the claimant’s dismissal occurred on 29 January 2021. It is alleged by the respondent that, on this day, the claimant confronted a cleaner at TVSC, Mr Bogumil Jacek Plaszcyca, and called him “a fucking Polish Nazi food thrower” (“the Phrase”).[4]The claimant entered three claim forms in relation to the facts of this case, all of which were consolidated by Employment Judge Porter at the preliminary hearing on 9 February 2023 – [118].[5]The claimant brings claims of: 5.1. Ordinary unfair dismissal – s98 Employment Rights Act 1996 (“ERA”); 5.2. Automatic unfair dismissal – s152 Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”); 5.3. Breach of contract/wrongful dismissal (notice pay).[6]There had originally been a claim for holiday pay, however we were informed on Day 1 of the hearing that this could be dismissed upon withdrawal by the claimant. As such, a separate dismissal judgment has been issued for that claim.[7]We had the benefit of a bundle, now totaling 941 pages due to the addition on Day 1 of the claimant’s contract of employment. We were also assisted by a reading list, chronology and cast list.[8]We read the statements of, and heard evidence from, the following witnesses: 8.1. The claimant; 8.2. Darren Webb (“DW”) (for the claimant) – trade union representative at the investigation meeting; 8.3. Mark Bellenie (“MB”) (for the claimant) – trade union representative at the disciplinary hearing; 8.4. Faith Carribine (“FC”) (for the respondent) – investigating officer; 8.5. Tony Scriven (“TS”) (for the respondent) – disciplinary officer; 8.6. Phil Barnes (“PB”) (for the respondent) – appeal officer.[9]Finally, we heard very helpful closing submissions from both counsel. We put on record our gratitude to both counsel for the pragmatic, reasonable and professional way in which they have conducted this case.
ISSUES
[10]The issues in this case appear in the List of Issues at [125] of the bundle. The list was agreed between the parties, with two additions from the Tribunal on the first morning of the hearing, those being: 10.1. Did R genuinely believe the claimant to be guilty of the misconduct alleged; and, 10.2. Were there reasonable grounds for that belief?[11]The list is therefore as follows: Unfair dismissal
ISSUES
[1]What was the reason or principal reason for dismissal? The respondent says the reason was conduct. Did the respondent genuinely believe the claimant to be guilty of the misconduct alleged?[2]If the reason was conduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant, to include:a. Did the respondent have reasonable grounds for its genuine belief, having carried out a reasonable investigation?b. Did the respondent reasonably conclude that the claimant used the words as alleged?c. Did the respondent follow their own disciplinary policy?d. Did the respondent follow the ACAS code?e. Did the respondent consider mitigating factors including the claimant’s length of service and disciplinary record?f. Was dismissal within the range of reasonable responses, having regard to the respondent’s size and administrative resources? Wrongful dismissal[3]Did the respondent act in breach of the claimant’s employment contract as alleged or at all?[4]Did the claimant commit a repudiatory breach of contract entitling the respondent to terminate the claimant’s employment summarily? Section 152 TULRCA 1992[5]Was the reason, or principal reason, for the dismissal that the claimant had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time?
Remedy
[6]If the Tribunal finds that the claimant was unfairly dismissed, what compensation is he entitled to?[7]If the Tribunal finds that the respondent has breached the ACAS Code, how much uplift should the claimant be awarded on his damages? Has the claimant sufficiently mitigated his loss?[9]Should any compensation payable be reduced on Polkey grounds?[10]To what extent did the claimant contribute to his own dismissal and should any compensation be reduced accordingly?[11]Should any compensation payable be reduced on grounds that it is just and equitable to do so?[12]Should the Tribunal make an order for reinstatement? In particular:a. The claimant wishes to be reinstated.b. Is is practicable for the respondent to comply with an order for reinstatement?c. If the claimant has caused or contributed to some extent to the dismissal, would it be just to order his reinstatement?[13]If making an order for reinstatement:a. What amount should be payable by the respondent is respect of any benefit which the claimant might reasonably be expected to have had but for the dismissal for the period between the date of termination of employment and the date of reinstatement?b. What rights and privileges must be restored to the claimant?c. What is the date by which the order must be complied with? FINDINGS OF FACT 12. Our findings are limited to those necessary to reach our conclusions and judgment in this matter. Just because a piece of evidence is not specifically mentioned does not mean that we did not consider it. 29 January 2021 incident 13. On 29 January 2021, an incident occurred in or around the kitchen, at which the claimant was at the centre (“the Incident”). The incident related to an ongoing issue that had arisen regarding the way in which food in the fridge in the staff kitchen was dealt with by agency cleaners. The cleaner who was in the kitchen on the day of the Incident was Bogamil Jacek Plaszcyca (“BJP”).
FINDINGS OF FACT
[14]Agency cleaners such as BJP were provided by a third party, Mitie. It was Mitie’s policy that the fridges should be checked by Mitie’s cleaners on a Friday, and any food left that is not named and dated should be thrown out.[15]This policy had caused friction amongst the respondent’s affected workforce, who were upset that their food was being thrown out. This was an issue that had been rumbling on for some time. As an RMT representative, the claimant had received numerous complaints about this issue from fellow employees.[16]The incident came to the attention of the respondent’s management team as follows. 16.1. James Hillman (“JHill”) spoke to Annalise Guelbert (“AG”) on Friday 29 January 2021. AG’s recollection is at [777], in which she recorded that JHill had told her that the claimant had called BJP the Phrase, and that JHill had witnessed the Incident; 16.2. On the same day, at approximately 1610hrs, AG telephoned Simon Aston (“SA”) (Route Operations Manager) to report the conversation with JHill – [806]. She latterly emailed him to confirm her account- [777]; 16.3. At 1710hrs on 29 January 2021, SA telephoned Michael Finn (“MF”) of Mitie to inform him of the event, as it involved one of Mitie’s cleaners – [806]. Suspension[17]SA also telephoned Kelly Elton (“KE”) (Employee Relations Advisor) and John Hastie (“JHa”) (Operations Manager) on Friday 29 January 2021. The purpose of this conversation was to determine whether or not to suspend the claimant. The decision, as recorded at [806], was that there was no need to suspend the claimant at this point, and that this decision would be reviewed on Monday. The decision was taken on the Friday not to suspend the claimant as they only had third-hand information at that stage, it was thought that matters could have been misinterpreted, and therefore suspension was not appropriate. It was also deemed unnecessary, given that the claimant and BJP’s shifts would not coincide until the following Wednesday – [589/592]. Unfortunately, the issue of suspension was never reviewed and the claimant was never suspended.[18]In terms of the failure to suspend, and the effects of this: first, we find that the respondent should have reconsidered the decision regarding suspension on Monday 1 February as intended. This lack of thought shows us that the respondent overall was not particularly concerned about BJP and the claimant being in the same workplace.[19]Secondly, the lack of suspension was taken by FC as leaving the claimant with the opportunity to intimidate and infect the other witnesses’ accounts. This is reported in her Investigation Report at [852]. There is no good evidence for this, and we reject this assertion. We consider that FC exaggerated in telling PB during her disciplinary appeal interview that HB and AW were “terrified” - [386]. The height of the evidence on AW’s feelings is set out at [781], in which he accepts FC’s offer to anonymise his statement. He then did later withdraw permission for his statement to be used. Regarding HB, FC’s evidence of his being terrified was based on her impression in interview, rather than anything specific he said.[20]Thirdly, we find that the lack of suspension opened the claimant up to hearing operations floor gossip about the investigation. It also meant in practice that, inevitably over the following months when the claimant was in work, BJP and C’s paths would have crossed.[21]In terms of the broader point as to whether the claimant spoke to any individuals about the investigation (as opposed to intimidating them or infecting their evidence), we accept that the claimant was not truthful about who he had spoken to when asked the question by FC during the disciplinary investigation. In cross-examination, he accepted that he had spoken to Matthew Catt (“MC”), JHill, Marcus Wilkins (“MW”) and Alan Hunt (“AH”). However, we have no evidence that those discussions were in any way intimidatory. Second, we note that the instruction to keep matters private and confidential only came to the claimant in the letter of 11 March 2021 – [208]. Third, the respondent asks us to infer from this untruth from the claimant that the claimant’s credibility more broadly is negatively affected. We find that, just because someone is untruthful on one issue, does not mean that they are untruthful more broadly. Monday 1 February 2021[22]On the following Monday 1 February 2021 at around 1010 hours, SA spoke to Alan Wadley (“AW”) (Area Operations Possession Co-ordinator), who had been named by AG as being present for JHill’s report on 29 January 2021 – [807];[23]Also on 1 February 2021 at around 1110hrs SA spoke to BJP – [807]. This was done without an interpreter present, through the medium of Google Translate. We note that the words mentioned by BJP were that someone had said “fuck you” and that that individual had “said other things but [BJP] didn’t hear because [the individual was] moving away” - [807];[24]Further on 1 February 2021, JHa spoke to JHill – reference [592].[25]SA informed FC on 12 February 2021 of the allegation made to him by AG and that he had done an initial fact-find – reference at [855]. The matter was then placed in the hands of FC by Gayle Callaghan (“GC”). Investigation[26]FC conducted the following interviews during the course of her investigation: 26.1. AG on 15 February 2021 – [583]; 26.2. SA on 16 February 2021 – [587]; 26.3. AW on 18 February 2021 – [779]; 26.4. JHill on 22 February 2021 – [594/599]; 26.5. JHa on 23 February 2021 – [603]. JHa also sent FC an email on 31 March 2021 regarding the distance from the kitchen to the workstation – [215]; 26.6. Rachel Pitt (“RP”) on 23 February 2021 – [607]; 26.7. Henry Biglowe (“HB”) on 3 March 2021 – [611]; 26.8. Daniel Murphy (“DM”) on 3 March 2021 – [617]; 26.9. Dee Chand (“DCh”) on 3 March 2021 – [621]; 26.10. Richard Heap (“RH”) on 3 March 2021 – [624]; 26.11. Brian Davis (“BD”) on 4 March 2021 – [627]; 26.12. HB on 4 March 2021 for a second time – [629]; 26.13. MW on 4 March 2021 – [632]; 26.14. MC on 4 March 2021 – [635]; 26.15. Chris Jordan (“CJ”) on 4 March 2021 – [637]; 26.16. Richard Smith (“RS”) on 4 March 2021 – [644]; 26.17. Darren Cole (“DCo”) on 4 March 2021 – [646]; 26.18. Bob Ellis (“BE”) on 4 March 2021 – [649]; 26.19. AH on 4 March 2021 – [654]; 26.20. BJP on 5 March 2021 – [661]; 26.21. JHa on 18 March 2021, for a second interview – [675].[27]The claimant was invited to attend an investigatory interview by letter dated 11 March 2021 – [208]. The letter provided that: “I am conducting an investigation into an allegation on comments you have made towards the cleaner (who works for Mitie) that they [sic] are unpleasant, offensive and derogative.”[28]The Phrase is not specifically recorded in this letter: that is not a criticism of FC, just a fact. In this interview letter, the claimant is told to keep the investigation confidential. This is the first time that instruction was given to him, and the first time he was (formally) informed that he was under investigation. We say “formally”: given that the claimant was not suspended, and twenty-one of his colleagues had been interviewed in the (roughly) one month prior to him receiving this letter, we accept that the claimant heard about the investigation via other means.[29]Furthermore, we find that there was general discussion about the investigation and the Incident on the operations floor where the claimant worked. This provided fertile ground for the rumour mill to spin amongst colleagues.[30]The claimant attended an investigation meeting with FC on 24 March 2021. DW accompanied the claimant to this meeting - [685]. In this interview, the claimant admitted going into the kitchen, seeing some of his son’s food on the counter having been removed from the fridge, and taking it back to the operations floor. The claimant told FC that AH had been present, smiling at him, to which the claimant had said “it’s a fucking disgrace” - [688]. The claimant denied using the Phrase. He also said that he did not apologise to the cleaner.[31]Following the interview with the claimant, FC went on to interview the following individuals: 31.1. Beth Allbon (“BA”) on 24 March 2021 – [694]; 31.2. DM on 25 March 2021 for a second time – [696]; 31.3. Tristan Burgess (“TB”) emailed answers to FC’s questions on 10 April 2021 – [219].[32]FC concluded and signed her investigation report on 1 May 2021: the report starts at [850]. We highlight in particular the following points from the Investigation Report: 32.1. FC recognises that JHill’s version of events he reportedly told to AG differed from the version he told FC, and that JHill had apologised to BJP – [852]; 32.2. DM’s evidence directly contradicted that of JHill – [853]; 32.3. HB told FC that there had been discussion about this amongst some colleagues. FC reminded him that this was a “breach of confidentiality” - [853]; 32.4. FC recorded that HB, in his second interview, had “confirmed that MK had called BJP ‘a fucking Polish Nazi food thrower” - [853]. This is incorrect, HB did not confirm that the Phrase was used; 32.5. FC emphasises her belief that colleagues’ criticisms of the cleaner not changing his gloves between cleaning the toilets and cleaning the kitchen are not well-founded – [853/854]. We find that this detail was not strictly relevant to the investigation and demonstrates a predisposition of FC to favour, or sympathise with, BJP; 32.6. Some of the above listed points of inconsistency/unresolved discrepancies are set out by FC in the section entitled “Any points of contention” - [854].[33]FC’s conclusion was that there was a disciplinary case to answer and that, if proven, the allegation would amount to gross misconduct – [856]. The matter was progressed to a disciplinary hearing.[34]The claimant went off on sickness absence due to stress on 11 May 2021 – fit notes are at [223, 227, 231, 238]. He returned in October 2021. Findings regarding investigation[35]We find that there are several loose ends that are left untied by the investigation. JHill evidence[36]Regarding JHill’s evidence, in his first interview, at [594], he stated that “one of signallers mention [the claimant] kicked off to the cleaner about the food”. However, JHill was not clear on the identity of the signaller from whom he heard this. He named MW and DM, but then it transpired that MW had not been on shift. This evidence was therefore equivocal and unreliable.[37]The words that JHill recalls in his first investigation meeting are: 37.1. “[the claimant] kicked off to the cleaner about the food”; 37.2. “Mick had go at the cleaner” - [595]; 37.3. JHill heard that the claimant had said “the food Nazi had been in the kitchen” - [595]. We note that this was an answer to the question “what did you hear [the claimant] had said to [BJP]?”: JHill’s answer would be an odd thing for the claimant to say directly to BP. It appears to us something more likely to have been said to a third party; 37.4. JHill confirmed he heard no swearing - [596]; 37.5. JHill says that he spoke to C “you can’t be saying that and shouting at people for doing their job”. This is not evidence from which it can be concluded that that JHill heard the claimant say the Phrase – [596]; 37.6. JHill told others that the claimant “kicked off about the food and called him a food Nazi” - [596]. Again, the question that is unanswered is whether JHill says that the claimant addressed the comment “food Nazi” to BJP or to a third party about BJP.[38]In his second interview, JHill stated the following - [675]: 38.1. That he was on a break when the incident happened, at about 1230hrs - [675]; 38.2. DM was the signaller he spoke to, who told him that the claimant “has kicked off in the kitchen again about the cleaner...” - [676]; 38.3. JHill said that he had apologised to BJP, saying “I said I'm sorry for shouting at you”. JHill said “I wanted to apologise to him...it isn’t fair he’s shouted at”. To us, this begs more questions, such as “why would someone blameless reach out to apologise?” - [677]; 38.4. JHill recorded the claimant saying “it’s a disgrace what he is doing” - [677]; 38.5. In terms of any racial comment, JHill said “I don’t believe he [the claimant] said that to cleaner, it was more shop floor talk. That racial slur was not direct to the cleaner”. He went on to say that he thought “the slur has been used before in the building” - [677]. In his next sentence, JHill stated “the first time I heard it used was about this”. We find that the natural reading of this sentence is that a racial slur had been used before regarding the food issue. The identity of the user of any racial slur is unclear; 38.6. JHill goes on in his next sentence to say “I didn’t hear it with this incident” - [677]. His evidence as to what racial slur was used, and when, we find is completely unclear. This is compounded by his next answer: “...I’ve heard it before, but I can’t recall when or when [DM] said to me that day”.[39]The upshot of JHill’s interviews is that he was unreliable, and the height of his recounted story is that the words “food Nazi” were used at some time. Although he mentions a racial slur, he is not clear that this was on 29 January 2021. In any event JHill’s evidence was that, whatever was said, it was not directed at the cleaner.[40]We then contrast this with DM’s evidence in his investigation meetings: 40.1. In the first interview, FC put to DM that JHill reported that DM had told him that BJP had been called “a fucking Nazi food thrower” - [619]. This was incorrect; in fact, this is not what JHill reported; 40.2. The height of DM’s evidence was that JHill told DM that the claimant “had had a go at the cleaner for doing his job”- [618] 40.3. DM said he had told JHill that the claimant “was going to have a go at the cleaner” in advance of anything actually being said, as he had heard a “ruckus” - [618/619]; 40.4. DM reported not being in vicinity when any altercation happened. When he returned, JHill told him that the claimant had “gone off at the cleaner again” – [618]; 40.5. DM denied hearing anyone swearing at cleaner, but about the cleaner - [619].[41]In DM’s second interview, no further clarity as to DM’s involvement is obtained – [696]. The second interview provided no helpful information.[42]The inconsistent and confusing interviews with JHill and DM leave the following unresolved holes in the investigation: 42.1. Was JHill actually there to overhear any altercation between the claimant and BJP? 42.2. Did JHill hear a racial slur on 29 January 2021?[43]We will cover the issue of the apology to BJP in more detail below. However, another query left unanswered is whether, since JHill apologised to BJP, was it in fact him (JHill) who said the Phrase or something similar to BJP on 29 January 2021. BJP evidence[44]BJP took part in two interviews; first with SA, and second with FC. FC during the investigation did not have SA’s contemporaneous notes of the first interview before her. We find that FC should have had those notes for completeness, given that FC was made aware by SA that he made notes during the first interview – [591]. However, SA’s notes reflect what SA reported to FC in his meeting with her, and therefore no substantive information was lost due to this oversight.[45]SA reported to FC that BJP, despite being asked several times, said “he didn't hear anything but fuck you” - [593]. SA was careful to emphasise to FC that he was careful of the translation and phrased the question in different ways. SA said “I asked him in every possible way I could think of. ...He said when he was doing the garbage later that day Michael had approached him and apologised to him”. From this statement, it is not clear whether BJP himself identified the individual as “Michael”: we find this unlikely, given that in his interview with FC BJP made it clear he did not know names of the respondent’s employees.[46]In BJP’s interview with FC, he had the benefit of a colleague to act as interpreter for him. BJP reported at [662] that “2 weeks prior he was cleaning the fridge...the man walked off and shouted “fuck you Mr B”” then “That time he called me [the Phrase] - a few hours later this man approached and apologized”.[47]Then BJP went on to say the “first time...the man in question shouted directly to Mr B saying “fuck you, fuck the food” ... this is not an isolated incident...they make fun of me and the person called me [the phrase]”[48]FC then put to BJP that “in the interview with Simon he told Simon they called him fucking Nazi food thrower why can’t he remember than now?” - [663]. This is incorrect: in the notes of the interview between SA and BJP, BJP did not tell SA that the Phrase was used. In any event, the allegation as put by FC misses out the word Polish from the complete Phrase.[49]The respondent relies heavily on BJP’s recollection of the Phrase in the second interview being unprompted. However, this second interview was several weeks after the event, when it is common ground that this matter had been the basis of office gossip. Further, in terms of SA’s interview with BJP, we find it strange that, when asked about an event that was only three days prior, BJP would focus on the “fuck you” comment from two weeks prior, rather than the more serious Phrase said three days prior. We accept that there may have been a language issue, but SA laboured the point in his interview with FC that he asked BJP in many different ways about what was said, to make it as clear a question as possible.[50]We find it unlikely that BJP would have failed to mention the Phrase at the first meeting with SA, then come up with it at the second meeting, unless he had heard it from someone in between, whether that was from Mitie or just on the operations floor.[51]In any event, BJP’s two accounts are inconsistent between themselves as to the events of 29 January 2021 and what words were used towards him. The inconsistency was left by FC, and no attempt was made to resolve it.[52]Moreover, BJP's account of the identity of the person who apologised on the face of the notes reads as the same person being the one who swore and apologised. This is so in both his account to SA and his account to FC. We find that FC just ignored this discrepancy with JHill’s evidence, that the identity of the perpetrator and person who apologised was different. Instead, FC accepted that JHill was the one who apologised, making the assumption that BJP got confused.[53]The identity of the individual who apologised was not resolved and should have been investigated further. No steps were taken to clarify the identity of the person who apologised, or at least whether BJP said it was the same man who swore at him, or a second man. HB evidence[54]HB was interviewed twice by FC, and for a third time by TS. In his first meeting with FC, he was unable to give any real detail. He referred to the claimant being “strong” and “direct”, that the claimant was “upset” regarding the food situation, but that HB “could not give [FC] a quote” - [611/612].[55]During the course of that first interview, it was FC who put the Phrase to HB, stating “it’s alleged that [the claimant] called the cleaner a fucking Polish Nazi food thrower”. Even when confronted with the specific wording, in the first interview HB was not able to assist as to whether the claimant had used the Phrase. HB’s first interview did not confirm in any way the claimant’s use of the Phrase. In fact, at [614] HB specifically stated: “You’ve given me a quote there, but I don’t remember it”.[56]We find that FC’s style of questioning HB was quite interrogatory. We consider it reasonable that HB would have felt under pressure and/or upset following this interview. For example, the following exchange at [613] demonstrates a more interrogatory than investigatory approach: “FC - you must remember something that happened for you to say that. What did you hear? Was it discussed?” HB – it would have been yes FC – your body language changes. I believe you are holding back.”[57]We also find that FC’s challenge and reprimand regarding HB discussing the matter with others placed pressure on HB and was inappropriate at an investigatory meeting - [614]: “FC - JHill hasn’t been in so how would you know if he has been interviewed? HB – I looked at the roster FC – how would you know I’m interviewing people from that day? JHill hasn't been in, so how would you know he’s been called in?”[58]Furthermore, on learning that HB had discussed the matter with colleagues, FC stated at the end of the meeting – [616]: “I need to take advice on this one because it was stated in the letter not to speak about this. This is a high-profile case. I don’t know how management will want to direct this. If you can go somewhere private to read and sign the minutes”.[59]We do not find that it was unreasonable to put the direct allegation to HB; FC asked initial general questions about what HB remembered, as she did with all interviewees, then drilled down on the Phrase itself. We accept that, ultimately, in an investigation meeting, the allegation has to be put to witnesses who may have been primary witnesses. However, we conclude that FC’s use of the Phrase tainted the reliability of HB’s evidence thereafter, planting the Phrase in his mind. This is particularly the case given his continued uncertainty after he was confronted with the Phrase. This demonstrates to us that this was not a phrase he recognised immediately.[60]Moving on to the second interview with FC, at [629], we understand that HB wanted to talk to FC again regarding the investigation. This second interview still does not provide reliable evidence that places the Phrase in the claimant’s mouth on 29 January 2021. All he is able to confirm is that something about the Phrase “rings true” and that he heard “some of those words” - [629]. This is despite FC putting pressure on HB prior to drilling down further, by stating - [629/630]: “If this is upheld, this disciplinary investigation will be gross misconduct. Just to give you some background, I get called in to do complex cases. If people withdraw statements, or [are] reluctant to give evidence. Even if they withdraw their statement, all the witness statements, still supported as part of the case if it goes to tribunal”.[61]We find that this statement from FC placed HB under pressure to give some affirmative evidence of the claimant’s use of the Phrase. Furthermore, she continued to push HB, even when it was clear he could not add any more: for example – [630: “HB - I know I was vague yesterday. It’s just something about that statement was ringing a bell and rings true. I can’t say where we were. FC – was it in the kitchen or the ops floor? HB – I think, actually no I’d be guessing. FC – IT's already been established [the claimant’ is loud within the operational floor. Somebody somewhere, must have been in good ear shote to catch it. I just need a rough idea. HB – I am really vague, but it’s just something about that statement. FC – the impact of that behaviour it isn’t correct within Network Rail. The behaviours go against our core values. It wasn't even the cleaner who reported it. Someone else was very upset about the behaviour of it. This is a very high profile case. HB – I'm pretty certain I heard it but blocked it out. I think he went out towards the kitchen, but I’ll be guessing”.[62]One other point we note about HB’s evidence: FC told us that, from where he was, she concluded that HB would not have been able to hear anything said in the kitchen. This further casts doubt on the reliability of his evidence, given our understanding of the respondent’s case that the Phrase was alleged to have been said to BJP in the kitchen.[63]We will return to HB’s evidence regarding his interview with TS at the relevant part of the chronology below. Quasi-procedural criticisms of the investigation from the claimant[64]At this stage, we make findings about the criticisms made by the claimant of the respondent’s procedure. We have labelled them as “quasi-procedural”, as Mr Tunley quite rightly did not argue that the claimant’s dismissal was strictly procedurally unfair. Instead, he submitted that there were irregularities within the investigation process that feed into the question of substantive fairness.[65]We deal with those points now: they are three-fold. Mr Tunley submitted that the investigation was flawed as follows: 65.1. The order of interviewing the witnesses, in that the claimant was interviewed in the later stages of the investigation, instead of early on in the process; 65.2. The manner in which the interview with the claimant was conducted; and, 65.3. FC prematurely making up her mind regarding the claimant’s guilt.[66]These three points are all inter-related. In terms of the order of witness interviews, generally, we find that the claimant should have been interviewed earlier in the process. The order in which FC interviewed the witnesses, coupled with the claimant not being suspended and still on the operations floor, meant that the claimant knew that he was being investigated, but was left in the dark (at least formally) as to what exactly was going on. This is an unsatisfactory position in which to leave an accused individual.[67]The claimant’s interpretation is that the order of interviewing meant that FC came to the claimant’s interview with a pre-conceived understanding of the narrative of events of 29 January 2021, which coloured the manner of her interview and her conclusions.[68]The question for us is “would the order of interviews have made any difference?”. We consider the answer to that question to be “yes”. We find that FC’s view of events had been crystalised by the time she reached the claimant’s interview. We find this on the following grounds: 68.1. The fact that FC was convinced of the claimant’s guilt is demonstrated by her statement to PB in the appeal interview: “FC - It was apparent what happened when I interviewed SA and [AG]. PB – You thought there was reasonable belief? FC - Absolutely” - [383]; 68.2. Looking at the claimant’s interview with FC, her style of questioning does demonstrate that she was coalescing around the idea that the claimant was guilty of something. For example, as part of the background of this case, the claimant mentioned that concerns had been raised with him that BJP was not changing his gloves between cleaning the toilets and cleaning the kitchen. FC’s manner of questioning around the gloves issue demonstrates a skewed view of the claimant’s character, accusing him of watching BJP instead of doing his work for example – [687]. In the claimant’s interview, he raised the gloves issue as background. When he tried to move back to the events of 29 January, FC said: “can I go back, you said you witnessed [BJP] with the same gloves on”. When the claimant’s representative asked FC the relevance of questioning over the gloves, FC’s answer was: “I am asking anything I feel relevant to the investigation”. The gloves issue was, at best, of background relevance to the allegation faced by the claimant. To focus on it from the viewpoint of the claimant’s credibility around his complaint demonstrates to us a negatively skewed view of the claimant.[69]These quasi-procedural points, particularly the order in which the witnesses were interviewed relate to the List of Issues at point 2c: “Did the respondent follow their own disciplinary policy?”. The Disciplinary Investigation Manager Guidelines July 2012 state - [859]: “it may in any event be useful to have an investigatory interview with the employee in question at an early stage. It may be there is a simple misunderstanding which can be resolved...”.[70]Although this is not strictly part of the Disciplinary Policy at [163], we consider that the Manager Guidelines form part of the procedural guidance as to how an investigating officer is to proceed. As such, we find that this was a breach of the respondent’s procedure. We consider the relevance of this feeds more into the question of substantive fairness than procedural fairness (to the extent it is necessary to distinguish between the two). Although we recognise that FC was not the decision maker, we find that her approach to the investigation tainted the evidence before the disciplinary officer. Disciplinary[71]TS was assigned to be the disciplinary officer in this matter.[72]As part of the disciplinary process, TS conducted an interview with HB which took place on 28 June 2021 – [705]. This was the only additional interview with a witness that TS undertook before meeting with the claimant.[73]In his meeting with TS, the only further detail that HB was able to give was that two words, “Chucker” and “Polish”, rang bells with him - [705]. To be precise, he was “certain” about “chucker” and “pretty certain” about “Polish” - [705]. However, this was followed by HB stating “I really cannot remember, I do not know where I was at the time” - [705]. HB ended his interview by stating that he was “unable to say 100% and is sorry he cannot remember it” - [706].[74]We find that TS should have interviewed both JHill and BP as well, in order to tie up the loose ends we have found existed in relation to both their accounts – set out above at paragraphs 36 to 53.[75]The claimant was invited to a disciplinary hearing originally scheduled for 30 November 2021. In the event the meeting took place on 14 December 2021 to accommodate the claimant’s representative. The disciplinary hearing was chaired by TS.[76]On 16 December 2021, FC forwarded TS the email information she had received from TB - [218]. She also made some comments about what she believed to have occurred. Notably, she made the point that JHill had changed his story. Despite this, no action was taken to pin down JHill or bottom out the inconsistencies in his accounts.[77]The invitation letter cited the following as the allegation faced by the claimant - [256]: “On Friday 29th January you confronted [BJP], a cleaner at [TVSC], while he was undertaking his duties and that you referred to [BJP] as a “fucking Polish Nazi food thrower””.[78]This is a very specific allegation. The respondent had the choice of how to frame the allegation at this stage. It could have drafted the allegation more broadly, for example “on 29 January 2021, you used inappropriate and racial language that breached the harassment policy”. The respondent chose to restrict the allegation as set out above.[79]The minutes of the first meeting with the claimant are at [266]. At the disciplinary hearing, the claimant called one witness in support of his case; AH, a fellow Signaller. AH was consistent in his evidence that he gave to both TS in the disciplinary meeting and FC in his investigation interview. AH’s account also aligned with the claimant’s account.[80]At the conclusion of the first meeting, TS said to the claimant - [273]: “I need to determine whether the words that were alleged to have been used were said or not”.[81]This is consistent with the fact that the allegation was specific regarding whether the claimant had used the Phrase on 29 January 2021.[82]The disciplinary hearing was reconvened on 27 January 2022: the minutes are at [308]. In this hearing, TS gave the claimant and his representative the opportunity to say anything further and then gave his decision. We note the following words: “I do believe an altercation took place and the behaviour was not appropriate, regardless of the words used” - [309]; “With regard to whether the alleged words were used; I’m convinced the word “Nazi” was used” - [310]; “I have thoroughly considered everything that was said, regardless if the words were said, I believe there is a case for harassment in the way [BJP] was treated. ... The case is gross misconduct and the words that were used strengthens the case” - [310].[83]TS then asked for 72 hours to consider the appropriate sanction to put in place – [311]. TS confirmed his decision to summarily dismiss the claimant in a letter dated 1 February 2022 – [339]. In that letter, it was confirmed that the reason for summary dismissal was the claimant’s use of the Phrase in reference to BJP on 29 January 2021. Appeal[84]The claimant appealed his dismissal by way of an email dated 7 February 2022 on the ground that - [352]: “...the whole case has not been investigated and summed up impartially and there is misrepresentation of the facts throughout”.[85]The appeal was heard by PB on 16 March 2022. At the appeal hearing, the claimant was accompanied by Eddie Dempsey (“ED”) as his trade union representative. The notes of the appeal hearing are at [421].[86]As part of the appeal process, PB interviewed FC and TS. The notes of TS’s interview are at [378]. TS told PB that his decision was based on “[piecing] together jigsaw puzzle of info” - [378]. He named certain evidence that he had relied on: the evidence of JHill, HB. PB and TS agreed in the interview that BJP’s evidence was important to the decision to dismiss as well - [379].[87]TS went on to state to PB that “it’s not the only incident” in relation to BJP. PB accepted that there may be a “cultural issue” and that “something needs to be done”. TS told PB that it was a “small group that are influential. I can guess who those are” - [379].[88]In terms of PB’s interview with FC, we have already set out the part in which FC explained that she “absolutely” had a reasonable belief that the allegation against the claimant was well-founded at a very early stage of the investigation – [383].[89]PB also read some but not all of the investigation documents and investigation interview notes. He was unable to clarify with us whose interview notes he had read. He told us that he read the ones that pertained to the points made by the claimant and his representative but was unable to tell us which ones they were.[90]PB started the appeal hearing on 16 March 2022 by stating that this was not to be a reinvestigation - [421]. We find this to mean that PB was intending to review the process undertaken by TS and to conclude whether it was fair. The trouble we have with this is that a review does not entail making a separate decision on the original allegation; that would be a rehearing. However, this is precisely what PB did; in PB’s summary of his findings at the reconvened appeal hearing on 25 April 2022, on [391], he concluded his view on the evidence by stating: “This evidence gives me reasonable belief that you did indeed use [the Phrase]”.[91]We find that PB was confused as to the remit of his role of appeal officer. He approached his reading of the evidence as if he were reviewing TS’s decision. If he had intended to rehear the case, we find it would have been necessary for him to read all the evidence available; not cherry pick which interview notes he read. This meant that his decision that the claimant did use the Phrase was not based on all the available and relevant evidence produced through the course of the disciplinary process.[92]At the end of the reconvened hearing, the claimant was informed by PB that his appeal had been unsuccessful – [391]. The decision on appeal was confirmed in a letter at [396]. Further investigations into “cultural issue”[93]The respondent has not produced any evidence to show that anyone else was disciplined following the conclusion of the disciplinary process against the claimant. On balance, we find that no one else was investigated or disciplined: this would have been an obvious point for the respondent to provide evidence on given the claimant’s case as put throughout this litigation. We draw an inference from the lack of evidence that any wider investigation was carried out into any cultural issue to support our finding on this. Other incidents involving the claimant and BJP[94]In terms of TS’s decision-making on the dismissal, his evidence to us was that he only dismissed the claimant on the basis of the specific allegation. Any reference to other conduct by the claimant was just included for background.[95]We find that TS did take into account other matters when determining to dismiss the claimant – see his explanation to PB at [378]: “One of the biggest factors it states Gross Misconduct – the sanction is given for the act. The impact and behaviours on [BJP] it's really sad – it's not the only incident. ...”[96]This is compounded by TS’s statement at [338], which sets out his decision to dismiss: “This incident was not the only occasion in which Michael has behaved like this towards Bogumil, who has been subjected to treatment in the workplace that constitutes bullying and harassment, by C and potentially others. Michael is a central figure in this treatment and equally has failed in his capacity as an influential person within that workplace to stop this behaviour from happening. ... Given the case for gross misconduct has been proven and considering the impact this incident and other prior behaviour has had on [BJP], I have determined that the appropriate sanction for this is dismissal without notice”.[97]In the above section, TS goes from “potentially others” in one sentence, to the following sentence which suggests that others were definitely involved, as TS concluded that the claimant was blameworthy for not having stopped prior behaviour. There is not sufficient evidence for TS to make this conclusion, nor was it put the the claimant.[98]We are not satisfied that the claimant was guilty of any other conduct towards BJP. There was not sufficient evidence to prove, on the balance of probabilities, that other incidents had in fact happened, the precise nature of those incidents and who was involved.[99]We accept that TS did have other (unproven) conduct in his mind during the course of this disciplinary process. However, we find that TS did in fact dismiss the claimant purely due to his belief that the claimant was guilty of the allegation. This was TS’s evidence to us, and is supported by his statement cited above to PB that “the sanction is given for the act” (our emphasis). Post-appeal[100]Following the outcome of the claimant’s appeal, on 20 May 2022, Michael Lynch (General Secretary of the RMT) sent a letter to the respondent to request a Director’s Review of the decision to dismiss the claimant. A Review was undertaken but was ultimately unsuccessful – [408].[101]Furthermore, there was a successful ballot for strike action resulting from the claimant’s dismissal – [407]. Events of 29 January 2021[102]The wrongful dismissal claim requires the Tribunal to make its own findings as to what happened on 29 January 2021.[103]We are not satisfied, on the balance of probabilities, that the claimant said the Phrase. We accept that he swore coming out of the kitchen saying “fucking disgrace”. There are several witnesses who refer to the claimant being loud, with reference to a ruckus, and commotion. We find that there was a commotion or ruckus at which the claimant was at the centre.[104]We find, on the evidence, that any inappropriate words said were said for the benefit of those in the operations room, rather than directly to the cleaner. That is what the weight of evidence from the investigation demonstrates.[105]On the evidence we have heard and seen, we cannot be satisfied what else (if anything) was said, other than “fucking disgrace”. Findings relating to failure to mitigate Retirement age[106]We find that, had the claimant remained employed with the respondent, he would have retired either on his 60th birthday (March 2023) or his 63rd birthday (March 2026).[107]We accept that there is evidence in the bundle to point towards a retirement age of 60. For example: 107.1. At [748], there is a pension benefits estimate which records the “Normal Retirement Date as being 13 March 2023; 107.2. At [751], the estimate factsheet sets out that the claimant’s pensionable service is projected to end on 12 March 2023.[108]However, we take into account the claimant’s evidence that he was considering retirement with reference to sporting events; particularly the 2023 Isle of Man TT and the 2026 America World Cup. We find that this detail of a reference point for retirement has a certain credibility to it.[109]Further, the claimant’s evidence demonstrated to us that he is alive to current issues that could affect his pension and retirement. He raised in his evidence the effect of different governments’ budgets on his lifetime benefits, for example. We consider that it is more likely than not that the claimant would have taken stock on the approach to his 60th birthday and reconsidered any decision on retiring at that stage. We find he would have been open to staying until he was 63 if it made financial sense at the time. Job searches[110]Following the claimant’s dismissal, he only applied for one type of role, as a trainee train driver. He applied for one role in August 2022 and another 5 roles in March 2023. That was the extent of his efforts on the job market. Findings relating to reinstatement Retirement age[111]In terms of what would happen if the claimant was reinstated, we find as follows. The claimant also told us that, if he was reinstated by this Tribunal, he “could go to my retirement age – which is 67, and the respondent I think make you retire at that age. I have known people stay after retirement age”. He did not go so far as to say that he personally would stay until after his retirement age.[112]We therefore find that, if the claimant were to be reinstated, he would on the balance of probabilities retire by the age of 67 (March 2030) at the latest.[113]The respondent’s evidence on reinstatement was that jobs were avaiable as a Signaller, at all Grades from 1 to 9. The claimant had been Grade 9 prior to his dismissal. The Grade of a signaller demostrates the level at which they can operate, the higher the Grade, the more senior the Signaller, and the higher the pay.[114]The claimant told us that he would do any Grade role, provided that it was at a Grade 9 salary.[115]The claimant would have to undergo a twelve-week course at Signalling School, at a cost to the respondent of £45,000. He would then need to do training on the job by shadowing a colleague for a standard minimum of six months. The respondent did accept that this minimum was discretionary, and an individual could be signed off earlier if appropriate.[116]We find that a cost of £45,000 is not an insubstantial burden for the respondent to bear, particularly given that we consider the claimant would more likely than not retire between March 2026 and March 2030, if reinstated. The respondent’s view of the working relationship[117]The respondent provided limited evidence on reinstatement, limited to one paragraph in TS/WS/8.10, and some oral evidence from KE.[118]In terms of TS’s evidence at TS/WS/8.10: 118.1. We reject the assertion that “many colleagues feared speaking up against him”. Our findings on this are at paragraph 19 above; 118.2. We reject the assertion that the claimant “acted in an unacceptable manner towards [BJP] on more occasions than the one alleged”, or that the claimant “did harass [BJP] on various occasions”. We have set out our findings on this issue above at paragraphs 94 – 99; 118.3. We accept that there is, in theory, a zero-tolerance policy towards bullying and harassment within the respondent. However, we find that this is not implemented to any great effect. This is based on our finding that no further investigations were done to unearth any bullying behaviour towards BJP in the workplace. See paragraph 93 above.[119]The claimant makes the point that the respondent’s view on practicability is undermined by the fact that the claimant was not suspended during the disciplinary process. This is compounded, Mr Tunley says, by the fact that the claimant was allowed to remain working from the date TS found him guilty of gross misconduct, to the day TS decided to summarily dismiss him.[120]On this, we have found that the question of suspension was not returned to as SA anticipated. The evidence was that suspension was to be considered on Monday 1 February 2021, but this was not done. No active decision was taken to leave the claimant in place, and we know that FC had misgivings about the lack of suspension. In terms of TS and the gap between the decision on gross misconduct and the decision on dismissal, this was a matter of days. Further, we are not satisfied that this was an active decision of TS to deliberately leave the claimant in the workplace.[121]We are not satisfied that the lack of suspension at any stage was the respondent actively determining that the claimant was fine to be left in the workplace.[122]In terms of the working environment, we have not acquitted the claimant entirely of any fault in terms of the disciplinary process. We have found that the claimant was at the centre of a ruckus on 29 January 2021. We have found that the investigation into the specific allegation was flawed, meaning that questions remain unanswered. This is far from acquitting the claimant entirely.[123]We also consider that reinstatement at this stage is not just a question of the claimant returning to work after an internal disciplinary process. We are now on the other side of full litigation and a judgment, which has the potential to alter working dynamics further.[124]We have not heard or seen any evidence about any significant changes in staffing since the claimant was dismissed. We therefore infer that the relevant personnel remains broadly as it was in 2021/2022. We find that, on balance, relationships between the claimant and those in management above him, and some of his colleagues who gave evidence in the internal process, would not be easily repaired 2-3 years down the line, following grievances, a disciplinary, and the Tribunal process. The claimant’s view of the working relationship[125]The respondent argued that, in light of some of the complaints the claimant raised internally (for example at [324]), it would appear that there was a breakdown in the trust and confidence between the parties.[126]The Tribunal does not have sympathy with this argument. These complaints appear to us to be routine issues that arose over many years during which the claimant was an RMT representative. We are not satisfied that the document at [324] demonstrates a breakdown in trust and confidence.[127]We do, however, accept that the claimant’s experience through the internal process tainted (to say the least) the claimant’s view of his colleagues to an extent. This is supported by the claimant’s grievance dated 31 January 2022, in which he refers to the workplace as a “toxic and distrustful place to be” - [328]. Additions to net weekly loss figure[128]The claimant claims various additional sums should be added to the figure used for net weekly pay, as follows: 128.1. Free and discounted travel benefit; 128.2. Death in service – this is no longer claimed; 128.3. MyEdenRed discount scheme; 128.4. Cycle to work benefit.[129]In relation to each of these additional sums, we find as follows. Free and discounted travel benefit[130]The claimant has claimed £10,409.57 for past loss, and a future loss of £200.18 per week in travel costs in his schedule of loss. He says he would not have paid these (or have to pay this in the future) but for his dismissal, due to employee travel discounts.[131]However, the claimant has not put any evidence before us that he in fact undertook the travel claimed within his schedule of loss. There is a lack of detail on the schedule of loss, for example the date on which the journeys are said to have been taken. We have not seen any receipts or tickets as evidence of payment for those journeys The figures claimed are therefore notional. We are not satisfied that the claimant or his partner in fact took the precise journeys claimed.[132]We have seen the claimant’s benefit statement for the year 2019 to 2020, in which the figure of £761.92 is recorded for “safeguarded travel provincial” - [734]. The respondent submitted that this is the appropriate annual figure for travel discount benefit. We accept this as being the more accurate figure for annual travel discount benefit. MyEdenRed discount scheme[133]This is a discount scheme whereby employees of the respondent can obtain discounts at various stores, as evidenced at [771] onwards. The claimant claims past losses of £378.04 and future losses of £2.64 per week.[134]The claimant in his schedule of loss sets out that he has spent £1150.44 in Halfords on which he would have received a discount of £92.94. He also sets out that he has spent £14,300 in Tesco on which he would have received a discount of £286. The future loss is calculated by averaging the past loss out over the period of past loss (143.4 weeks).[135]Again, the claimant has provided no good evidence of his spending at Halfords and Tesco to support the assertion in his schedule of loss. As such we cannot be satisfied of the accuracy of these figures and so are not satisfied that any additional sum should be added to the net weekly pay figure for MyEdenRed discounts. Cycle to work scheme[136]We have some evidence that there was a cycle to work scheme which led to benefits for partaking employees – [769]. The claimant told us that he was planning to start cycling and indeed had purchased a bicycle. However, again there is a lack of good evidence that the claimant had a realistic intention of taking part in this scheme. There is nothing more other than the claimant telling us he would have partaken in this scheme. Without any further evidence of affirmative action taken to start on this scheme, we find that he cannot prove to our satisfaction that he would have done so. We find that this benefit does not, and would not, have formed part of the claimant’s pay. LAW Unfair dismissal – reason for dismissal
LAW
[137]The relevant legislation is found at s98(1), (2) and (4) ERA: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal, and(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) Relates to the conduct of the employee,(c) Is that the employee was redundant, or(d) Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) ... (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”.[138]The reason for dismissal is the “set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee” - Abernethy v Mott, Hay and Anderson 1974 ICR 323.[139]It is for the employer to show the reason for dismissal and that it is a potentially fair one, such as conduct: this is not a high threshold for a respondent. In Gilham and Ors v Kent County Council (No2) 1985 ICR 233, the Court of Appeal held as follows: “The hurdle over which the employer has to jump at this stage of an inquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the inquiry moves on to [s98(4)] and the question of reasonableness.” Unfair dismissal – fairness Substantive fairness[140]Regarding conduct cases, the case of British Home Stores Ltd V Burchell [1978] IRLR 379 encompasses the relevant test for fairness: 140.1. Did the Respondent have a genuine belief that the Claimant was guilty of the misconduct alleged by the Respondent? 140.2. If so, were there reasonable grounds for the Respondent in reaching that genuine belief? and, 140.3. Was this following an investigation that was reasonable in all the circumstances?[141]In all aspects of such a case, including consideration of sanction, in deciding whether an employer has acted reasonably or unreasonably within s98(4) ERA the Tribunal must decide whether the employer acted within the band of reasonable responses open to an employer in the circumstances. Whether the tribunal would have dealt with the matter in the same way or otherwise is irrelevant, and the tribunal must not substitute its view for that of a reasonable employer – Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, London Ambulance Service NHS Trust v Small [2009] IRLR 563. Procedural fairness[142]Following the case of Polkey v AE Dayton Services Ltd [1988] ICR 142, it is well established that fairness in procedure is a vital part of the test for reasonableness under s98(4) ERA. It is not relevant at this (the liability) stage to consider whether any procedural unfairness would have made a difference to the outcome: that is a matter for remedy (the issue in Polkey is set out below).[143]If there is a failure to adopt a fair procedure, whether by the ACAS Code’s standards, or the employer’s own internal standards, this will render a dismissal procedurally unfair.[144]Regarding dismissal for conduct issues, the reasonableness of the procedure rests fairly heavily on the reasonableness of the investigation, and the provision of opportunity for the employee to make his position, explanation and mitigation heard and understood.[145]Procedural and substantive fairness do not stand as separate tests to be dealt with in isolation – Taylor v OCS Group Ltd [2006] ICR 1602. It is, ultimately, a view to be taken by the Tribunal as to whether, in all the circumstances, the employer was reasonable in treating the reason for dismissal as a sufficient reason to dismiss. It may therefore be that in a serious case of misconduct it may be fair to dismiss, even if there are slight procedural imperfections. On the other hand, where the conduct charge is less serious, it may be that a procedural issue is sufficient to tip the balance to make the dismissal unfair. Wrongful dismissal/breach of contract[146]This claim requires the Tribunal to perform a different exercise when compared to the test under s98 ERA. Here, the question is, as a matter of fact, was there a breach of contract in that the employer failed to pay the employee their contractual notice pay?[147]This requires the Tribunal to consider first whether the employee acted in a way so as to fundamentally breach their contract so as to enable the employer to summarily terminate the employment contract. This summary termination acts to release the employer from all its outstanding contractual obligations, including the obligation to pay notice pay.[148]Unlike under a claim for unfair dismissal, a wrongful dismissal claim, requires the Tribunal to make findings of fact as to the nature and extent of the employee’s conduct. The reasonableness of actions by the employer is irrelevant.[149]Therefore, a wrongful dismissal is not necessarily unfair, and an unfair dismissal is not necessarily wrongful – Enable Care and Home Support Ltd v Pearson EAT 0366/09. Automatic unfair dismissal[150]The claimant brings a claim pursuant to s152 TULRCA, which provides as follows: “(1) For the purposes of Part X f the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee –(a) Was, or proposed to become, a member of an independent trade union,(b) Had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, (ba) Had made use, or proposed to make use, of trade union services at an appropriate time, (bb) Had failed to accept an offer made in contravention of section145A or 145B, or,(c) Was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member.”[151]Given that it is the employee in automatic unfair dismissal cases who proffers a specific reason for dismissal, there is an evidential burden on the claimant to show (but not prove) that there is at least an issue which merits investigation into whether the automatically unfair reason can be established as the real reason for dismissal. This is not a high burden.[152]Once the claimant has presented evidence to establish that there is such an issue, and given claimant has more than two years’ service with the respondent, the burden of proof (on the balance of probabilities) as to the reason for dismissal returns with the respondent – Maund v Penwith District Council 1984 ICR 143 CA. Remedy issues Polkey reduction[153]The decision in Polkey v AE Dayton Services Ltd [1987] UKHL 8 permits the reduction of compensation when, even if a fair procedure had been followed, the Claimant would have been dismissed in any event.[154]Compensation can be reduced as a percentage, if the Tribunal considers that there was a percentage chance of the employee being dismissed in any event. Alternatively, where it is found that a fair procedure would have delayed dismissal, compensation should reflect this by compensating the employee only for the length of time for which dismissal is found to have been delayed.[155]The Tribunal has to consider what difference a fair procedure would have made, if any. It is for the Respondent to adduce evidence on this point. It is always the case that a degree of uncertainty is inevitable, unless the process was so unreliable it would be unsafe to reconstruct events. However, the Tribunal should not be reluctant to undertake the exercise just because it requires speculation – Software 2000 Ltd v Andrews [2007] ICR 825.[156]The tribunals have held that it is not as straight forward as saying that Polkey reductions can only apply in cases of solely procedural unfairness. However, in King and ors v Eaton Ltd (No2) 1998 IRLR 686, Ct Sess (Inner House), it was held that the distinction between procedural and substantive failings may, in fact, be an important one. It is easier to say with some certainty that, had a procedural step been rectified, the outcome would have been unaltered. Conversely, in cases of substantive unfairness, it may well be harder to hypothesize about what would have happened but for that unfairness. In the latter scenario, the Court of Session found that the tribunal cannot be required to “embark on a sea of speculation”.[157]Appellate courts have moved away from distinguishing between substantive and procedural unfairness, and instead focus on the need to consider a Polkey reduction when there is evidence that a claimant may have been fairly dismissed in any event. Contribution[158]The provisions regarding contribution are set out in relation to the basic award and the compensatory award at s122(2) and s123(6) ERA, and provide as follows: “s122(2) - 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.” “s123(6) - 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.”[159]Under s122(2) ERA, the relevant test is whether it is just and equitable to reduce compensation in light of conduct of the Claimant prior to the dismissal. The conduct need not contribute to the dismissal. The Employment Appeal Tribunal has confirmed that the same test of “culpable or blameworthy” applies to the s122(2) reduction question as to s123(6) ERA – Langston v Department for Business, Enterprise and Regulatory Reform UKEAT/0534/09.[160]Under s123(6) ERA, the test is whether any of the Claimant’s conduct prior to dismissal was “culpable or blameworthy” – Nelson v BBC (No.2) 1980 ICR 110, CA. This requires the Tribunal to look at what the Claimant in fact did, as opposed to being constrained to what the Respondent’s assessment of the claimant’s culpability was – Steen v ASP Packaging Ltd [2014] ICR 56.[161]The EAT in Steen summarised the approach to be taken under s122(2) and s123(6) ERA at paragraphs 8-14 of the judgment: 161.1. Identify the conduct which is said to give rise to possible contributory fault; 161.2. Ask whether that conduct was blameworthy, irrespective of the Respondent’s view on the matter; 161.3. Ask, for the purposes of s123(6), whether the conduct which is considered blameworthy caused or contributed to the dismissal; and, if so, 161.4. Ask to what extent the award should be reduced and to what extent it was just and equitable to reduce it.[162]Steen also indicated that a reduction of the basic award to nil would be a rare finding. Failure to mitigate[163]S123(4) ERA sets out the legal principle that a claimant must take reasonable steps to mitigate their losses: (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.[164]The case of Gardiner-Hill v Roland Berger Technics Ltd 1982 IRLR 498 set out the three main questions for the Tribunal to consider: 164.1. What steps were reasonable for the claimant to have taken in order to mitigate their loss; 164.2. Whether the claimant did take reasonable steps to mitigate; and, 164.3. To what extent, if any, the claimant would actually have mitigated their loss if they had taken those reasonable steps.[165]The burden of proof lies with the respondent to prove that the claimant has acted unreasonably. It is not for the claimant to prove that they acted reasonably. Furthermore, it is not just a question of the respondent proving that there were other reasonable steps that a claimant could have taken to mitigate their loss. The respondent has to prove that the claimant acted unreasonably by not taking those steps – Cooper Contracting Ltd v Lindsey 2016 ICR D3, EAT.[166]It is not an entirely objective test. The question is not “what could a reasonable individual have reasonably done”, but “what could this particular claimant, in his/her particular circumstances (including their experience, or lack of, their age and physical abilities and so on), have reasonably have done” – for example Fourgere v Phoenix Motor Co Ltd [1977] 1 All ER 267.[167]The Tribunal will be wrong if, on finding a failure to mitigate, it reduces the compensation by a percentage. Instead, the Tribunal must make findings as to when in fact the claimant should have mitigated his loss had he taken reasonable steps – Hakim v Scottish Trades Unions Congress UKEATS/0047/19: “Although [earlier cases] ask the Tribunal to identify the “date” upon which he would have found employment, the tribunal should not strive for a false appearance of precision. The tribunal is entitled to use its judgement and fix a suitable point in time for the purpose of the calculation. In performing this exercise, it should be recalled that the burden of proof is on the respondents. It was for the respondents to satisfy the Tribunal that the claimant’s steps were unreasonable. In the absence of satisfactory evidence, the claimant should no doubt get the benefit of the doubt. After making suitable findings the Tribunal should then assess the differential loss”. Reinstatement[168]Ss113, 114 and 116 ERA provide for reinstatement as follows: “113 The orders An order under this section may be –(a) An order for reinstatement (in accordance with section 114), or(b) An order for re-engagement (in accordance with section 115), As the tribunal may decide. 114 Order for reinstatement (1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. (2) on making an order for reinstatement the tribunal shall specify – (a) Any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (b) Any rights and privileges (including seniority and pension rights) which must be restored to the employee, and(c) The date by which the order must be complied with. (3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed. (4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the Tribunal shall taken into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of – (a) Wages in lieu of notice or ex gratia payments paid by the employer, or (b) Remuneration paid in respect of employment with another employer, And such other benefits as the tribunal thinks appropriate in the circumstances. 116 Choice of order and its terms (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account – (a) Whether the complainant wishes to be reinstated, (b) Whether it is practicable for the employer to comply with an order for reinstatement, and (c) Where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal does not make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account – (a) Any wish expressed by the complainant as to the nature of the order to be made, (b) Whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) Where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms...”.[169]The Tribunal has a duty to consider the three factors set out in s116(1) ERA set out above. However, the Tribunal may also take into account any other factors that it considers to be relevant, including the consequences for industrial relations (for example) - Port of London Authority v Payne and Others 1994 ICR 555 CA.[170]The most important factor is generally deemed to be that of practicability. This is a question of fact for the Tribunal on which the Tribunal will need to hear evidence.[171]Tribunals are encouraged to take a “broad common-sense view” of practicability – Meridian Ltd v Gomersall and anor 1977 ICR 597 EAT.[172]The term practicable has been held to mean more than merely possible; an order to reinstate must be “capable of being carried into effect with success” - Coleman and anor v Magnet Joinery Ltd 1975 ICR 46 CA. The expediency with this reinstatement can occur is irrelevant.[173]At the remedy stage, the question of practicability is not determinative: it is a factor that must be taken into account and weighed into the balance with any other relevant factors. The time at which practicability must be assessed is at the date of the remedy hearing – Rembiszewskit v Atkins Ltd EAT 0402/11. Further, it is not for the respondent to show that reinstatement is not practicable, there is no statutory assumption of practicability that needs to be rebutted – First Glasgow Ltd v Robertson EATS 0052/11.[174]Other factors that may weigh into practicability, or more widely into the decision on reinstatement, include: 174.1. Relationships with colleagues; 174.2. Trust and confidence; 174.3. Conduct during litigation; 174.4. Company image; 174.5. Contributory fault.[175]On that last factor of contributory fault, again it is not determinative to the issue of reinstatement if the Tribunal orders a reduction on any financial award for contributory fault. A reinstatement order can be made even in circumstances where there is a large contributory fault element, provided that the Tribunal’s view that the facts warrant and order is a reasonable view. The effect of and finding of contribution is more frequently taken into account by reducing any back pay once an order for reinstatement is made. CONCLUSIONS Reason for dismissal – s152 TULRCA/s98 ERA Including whether the respondent held a genuine belief in the claimant's guilt
CONCLUSIONS
[176]The first question we ask ourselves is “is there sufficient evidence before us for the claimant to have met his evidential burden of proof in demonstrating that the reason for dismissal was his trade union activities?”. We conclude that there is not.[177]We accept that each of the three officers involved in the internal disciplinary process was aware of the claimant’s RMT activities. That much is clear.[178]We note that there are vague or oblique references to the claimant as an RMT representative throughout the internal process upon which the claimant relies as being sufficient to match the evidential burden. We look at these in turn.[179]During the disciplinary stage, TS at [338] found that the claimant “has failed in his capacity as an influential person within that workplace to stop this [treatment of BP]”.[180]We do not consider this is sufficient to conclude that TS’s decision was impacted by the claimant’s status as a trade union representative. We take the reference to “influential position” to mean that people saw the claimant as someone to whom they could take their problems, and that led to him being seen as influential.[181]As a side note at this stage, we find that it was not reasonable for TS to hold the claimant responsible for stopping others’ actions, when any action was at best unclear on the evidence before him (TS). Further, the suggestion that the claimant should have prevented others from treating BJP badly was not put to the claimant, and so he had not had the opportunity to answer that allegation.[182]We were also taken to the phrase purportedly used by JHa of the claimant being a “rabble rouser” - [DW/WS/8]. First, we cannot be satisfied that this phrase was in fact said (it is reported second hand, Mr Rose purportedly heard JHa say these words); second, JHa was not a decision maker in this disciplinary process. We understand that, in relation to this second point, Mr Tunley relies on TS’s statement in his interview with PB at [275] where he stated “[c]onversations I have with line management and HR advisors during this case do not support a notion of a good reputation”. However, we cannot be satisfied on the evidence that this relates to(a) the rabble rouser comment, and/or(b) the claimant’s activities as a trade union representative. We simply do not know to what the lack of good reputation refers.[183]There is not sufficient evidence for us to be satisfied that there is an issue as to whether trade union activities had any influence on TS as decision maker.[184]We therefore reject the claim under s152 TULRA.[185]We accept that the reason for dismissal was misconduct as argued by the respondent. No third alternative has been proposed by the claimant as to the reason for dismissal. We accept TS and PB had (and still have) a genuine belief that the claimant was guilty of the conduct of which he was accused, that being the use of the Phrase on 29 January 2021. Both TS and PB were independent, did not know the claimant prior to this disciplinary process, and had no axe to grind.[186]We are satisfied that the facts or beliefs that operated on TS and PB’s minds were the events of 29 January 2021. If the reason was conduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?[187]The overarching issues under the Birchall v BHS test are whether the genuine belief held by TS and PB was based on reasonable grounds following a reasonable investigation. Did the respondent carry out a reasonable investigation[188]We have found that there were questions left by the investigation process that were not remedied either at the disciplinary or appeal stages. Namely: 188.1. Was JHill present on 29 January to witness any incident with the claimant and BJP first hand; 188.2. Did JHill hear a racial slur on 29 January 2021; 188.3. In light of the fact that JHill apologised, coupled with BJP’s evidence that it was the same person who swore and apologised, was it in fact JHill who said the Phrase (or something similar) to BJP on 29 January 2021; 188.4. What in fact, according to BJP, was said to him/about him on 29 January 2021; 188.5. Was the person who swore the same person who apologised; 188.6. What was the identity of the person(s) who swore and apologised (even if just a description of the individual(s))? Did the respondent reasonably conclude that the claimant used the words as alleged?[189]Mr Crozier very eloquently argued that there were “three pillars” holding up the respondent’s decision making, leading to reasonable grounds for the respondent’s genuine belief. Those three pillars were: 189.1. JHill provided the precise Phrase to FC; 189.2. BJP gave the Phrase unprompted in his interview with FC; and 189.3. HB identified some of the key words in the Phrase (“chucker” and “Polish”).[190]Mr Crozier submitted that, knock down one, or even two of these pillars, and the decision still stands firm. We do not accept this submission.[191]In relation to the first pillar, as we have set out already, there are holes and inconsistencies in JHill’s evidence; this, we conclude, makes his evidence unreliable. In terms of what he in fact conveyed, the height of his evidence was that “food Nazi” was said, not the whole Phrase.[192]The first pillar crumbles.[193]In relation to the second pillar, as well as the uncertainty we have already discussed within the evidence given by BJP, we also consider his reliability to be tainted by his anxiety-riddled comments within his interview with FC. In that interview, he referred to being recorded on people’s phones, and that he believed the interview currently underway with FC was being recorded. We conclude that this demonstrates a level of anxiety. This level of anxiety may be understandable: BJP was surrounded by people speaking an alien language, and he was aware that there was an issue with the food in the fridge. We can see how he would feel alienated, and how this could grow to disproportionate levels of anxiety.[194]However, coupled with the lack of clarity in his evidence to which we have referred in our findings of fact, we are not satisfied that BJP’s evidence is reliable.[195]On a related note, Mr Tunley criticised the respondent for not exploring with Mitie what BJP was told. As we have already found, whether BJP heard something via a Mitie representative, or from the operations floor, we need not explore further. Our finding is that it is more likely than not that he heard the Phrase from a third party in the time between his interview with SA and his interview with FC.[196]Therefore, the second pillar crumbles.[197]We turn then to the third pillar, and consider HB’s evidence.[198]The height of HB’s evidence is that he was certain that the word “Chucker” was used, and “pretty certain” the word “Polish” was used. Nothing more.[199]In terms of the claimant’s guilt of the specific allegation, we conclude that HB’s evidence is not sufficiently precise and does not sufficiently corroborate the allegation of the claimant using the Phrase on 29 January 2021.[200]The third pillar therefore crumbles as well.[201]Mr Crozier submitted that implicit within TS’s decision making was the conclusion that the claimant’s credibility was damaged, which also therefore feeds into the reasonable grounds for TS and PB’s genuine belief. We consider that any dent in the claimant’s credibility does not detract from the problems with the respondent’s investigation and the instability of its three “pillars”.[202]We conclude that there were not reasonable grounds for the respondent’s genuine belief, and the investigation was not within the range of reasonable responses. Ultimately, the claimant was disciplined for a specific allegation: it was outside the range of reasonable responses to uphold that specific allegation on the basis of the evidence before the respondent at the time of the decision to dismiss. Did the respondent follow their own disciplinary policy?[203]We have found that the respondent did not strictly follow its own policy, in terms of its failure to hold the investigation meeting with the claimant early on in the process. Did the respondent follow the ACAS Code?[204]This point was withdrawn by the claimant at the point of closing submissions and as such we need not address it further. Did the respondent consider mitigating factors, including the claimant’s length of service and disciplinary record? Was dismissal within the range of reasonable responses, having regard to the respondent’s size and administrative resources?[205]We take these two issues together, as the first is really encompassed in the second. We consider: 205.1. The respondent’s conclusion that there was harassment by the claimant, regardless of whether or not the Phrase was used; 205.2. The weight of previous conduct by the claimant on the mind of TS; and, 205.3. The treatment of others.[206]Had we been satisfied that there had been a reasonable investigation and reasonable grounds for the respondent’s genuine belief, we would be satisfied that dismissal was within the band of reasonable responses for someone using the Phrase. However, that is not the situation in which we find ourselves.[207]TS’s evidence was that, even if the claimant did not say the exact words, he would have been dismissed for harassment in any event. We are not satisfied that there was enough on the evidence before TS to be satisfied of the specific nature of any harassment, and further that any conduct short of the use of the Phrase by the claimant amounted to gross misconduct worthy of dismissal.[208]The broad charge of harassment is not sufficiently clear. TS reached the conclusion that something harassing had happened, however the precise nature of any harassment by the the claimant towards BJP is unclear on the evidence. The specifics, as far as they go, are as follows: 208.1. A “Ruckus” or “commotion” took place; and, 208.2. “swear words” were used.[209]This ambiguous detail is not sufficient to equate to gross misconduct. Whether dismissal was appropriate would very much depend on the precise nature and wording of the words used and actions done. On the evidence TS had, it would be outside the band of reasonable responses to dismiss on the basis of harassment.[210]Specifically considering the evidence of the claimant, that he admitted saying “fucking disgrace”, we find that swearing on the operations floor was not unusual, and in fact was fairly common. This finding is based on the evidence given in cross-examination by FC, that there was swearing all the time in that environment. As such, we conclude it would be outside the band of reasonable responses to dismiss the claimant for saying “fucking disgrace”.[211]Furthermore, no specific act of harassment other than the Phrase was put to the claimant. Therefore, if the dismissal was to be said to be on the grounds of behaviour regardless of the use of the Phrase, there was not a reasonable investigation into that broader allegation.[212]Moving on to the second point, the claimant submitted that TS had taken other previous conduct into consideration when dismissing the claimant. We have made findings on this at paragraphs 94 to 99 above.[213]However, we accept TS’s evidence that he would have dismissed the claimant for solely the use of the Phrase in any event. TS gave clear evidence on this point. This evidence was corroborated by TS’s statement to PB that “one of the biggest factors it states Gross Misconduct – The sanction is given for that act” - [379].[214]On the third point, regarding treatment of others, the specific case of any specific comparator has not been pushed by the claimant. Initially, the claimant relied upon the case of a colleague who had not been dismissed, having displayed a poster showing Adolf Hitler.[215]It would be hard to see how the argument of inconsistent treatment in comparison with that individual could be pursued with any rigour, given that the alleged comparator was not a true comparator. The conduct of which the colleague was guilty is not the same or truly similar to the allegation against the claimant.[216]However, we do consider the respondent’s general approach to the purported cultural issue regarding BJP to be of relevance.[217]The respondent has not produced any evidence to show that anyone else was disciplined following the conclusion of the disciplinary process against the claimant. On balance, we find that no-one else was investigated or disciplined: this would have been an obvious point for the respondent to provide evidence on given the claimant’s case as put throughout this litigation. We draw an inference from the lack of evidence that any wider investigation was carried out into any cultural issue to support our finding on this.[218]This lack of broader investigation/enquiry suggests that the respondent has been content to leave those who TS at least suspected of acting in a racially harassing way towards BJP working in the same workspace as him. As such, this does undermine the decision to dismiss the claimant.[219]In all the circumstances, we conclude that no reasonable employer would have dismissed the claimant for the specific allegation on the evidence before it.[220]We must say that we accept that TS and PB acted in good faith and did what they thought was right. The problem crept in at the investigation stage, the flaws of which then infiltrated the disciplinary process and were not remedied.[221]The claimant’s claim of ordinary unfair dismissal therefore succeeds. Wrongful dismissal[222]This claim requires the Tribunal to make its own findings as to what happened on 29 January 2021. This therefore differs from the test for unfair dismissal, in which we consider what the respondent understood to have happened on that date.[223]We have set out our findings at paragraphs 102 – 105 above. In summary, we are satisfied that the claimant was at the centre of a commotion. During the course of that commotion, he said “fucking disgrace” about BJP and the fridge/food situation. We cannot be satisfied as to what else (if anything) was said.[224]On that basis, we find that the claimant’s conduct, as we have found it to be, did not amount to gross misconduct.[225]As such the claimant did not fundamentally breach his contract, and therefore the respondent was not entitled to treat itself as released from its obligation to pay notice pay.[226]The claimant’s claim of wrongful dismissal therefore succeeds. Polkey[227]We have found that the claimant’s dismissal was substantively unfair. We find that this is a case in which we cannot hypothesize as to what the outcome would have been had the substantive unfairness been eroded. As such, we decline to “embark on a sea of speculation” as put by the Court of Session.[228]We make no Polkey reduction. Contributory fault[229]The respondent relies on two aspects of the claimant’s conduct to say a reduction should be made to both the basic and compensatory award under ss122/123 ERA. Firstly, the respondent relies on the conduct that is the subject of the disciplinary process. Secondly, the respondent relies on the claimant lying in the investigation regarding who he had spoken to about the investigation process.[230]Taking the lying point first, we have found that the claimant did lie about who he had spoken to about the disciplinary allegation and process. The fact he had spoken to others was accepted by the claimant in cross-examination.[231]We have found that the claimant was in the centre of a commotion and said “fucking disgrace” in a loud voice to the operations floor about the food issue.[232]The first question for us is whether these matters were culpable or blameworthy.[233]In terms of the use of the phrase “fucking disgrace”, we have found that swearing is not uncommon on the operations floor. FC said in evidence that there was swearing all the time. In these circumstances, in this environment, using the term “fucking disgrace” was not beyond the realms of normal, and we conclude that it was not blameworthy. We also take into account our finding that no further investigations were done to establish whether anyone else was guilty of inappropriate behaviour towards BJP, despite TS and FC’s concerns on this point.[234]In terms of lying in the investigation, we do consider lying in such circumstances to be blameworthy. We note that the claimant received the invitation to investigation meeting on 11 March 2021, and it is only at this point that he became aware of the respondent’s instruction to keep the matter private and confidential. We therefore do not find that he was blameworthy in discussing the matter with anyone before this date. However, we accept that he still was not truthful about who he had spoken to in his conversation with FC. We have found that FC’s approach to the claimant’s interview was skewed to see him in a negative light, which we find, on balance, contributed to the reason for the claimant lying on this point.[235]The next question is whether that lie contributed to the claimant’s dismissal. We are satisfied that the respondent’s view on the claimant’s credibility was impacted by his lying here, and created some lack of trust. As such, we are satisfied that this did contribute (albeit in some small way) to his dismissal.[236]In terms of the appropriate percentage reduction to the compensatory award, we conclude that a 10% reduction is appropriate. This specific lie was not the key reason as to why the claimant was dismissed; it was a minor contribution aptly reflected by a 10% reduction. Further, FC’s view of the claimant was already negative, regardless of this particular lying issue.[237]In relation to a reduction of the basic award, the question here is simply whether any reduction would be just and equitable. We conclude that, in light of the 10% reduction being made to his compensatory award, it would not be just and equitable to reduce his basic award as well. We are satisfied that the reduction to the compensatory award is sufficient to mark the fact that the claimant lied in the investigation.[238]In terms of lying, we address one point for completeness. In crossexamination, Mr Crozier also put to the claimant that he was lying when in the appeal meeting with PB he said that he had “been to an area council on 24 March and received the investigation report when he got home” - [422]. Evidently this was not true as the investigation report was in fact completed on 1 May 2021. However, we are not satisfied that this was a deliberate lie, given that at the time of the claimant making this statement nearly one year had passed. In any event, the respondent has not argued that this lie in itself should lead to a reduction.[239]We make a 10% reduction to the compensatory award, and no reduction to the basic award. Reinstatement[240]At paragraphs 111 to 127 we set out our findings regarding the practicability of reinstatement.[241]We now also weigh into the balance that we have found that the claimant was guilty of some blameworthy conduct, leading to a reduction in his compensatory award of 10%.[242]We also accept Mr Crozier’s point: there is a difference between the decision to remove someone from the workplace, and the decision to place them back into that same workplace. We have found that the claimant should not have been dismissed, however that is not the same as finding he should now, three years later, be placed back into that working environment.[243]Taking all our findings on the practicability of reinstatement into account, we consider that, although it may be possible for the claimant to return to his role physically, we are not satisfied that this could be done in a way that could be “carried into effect with success” in light of all the circumstances that have led to this tribunal claim.[244]We therefore refuse to order reinstatement.[245]We did consider re-engagement at this stage, to a different Grade role, in a different location. Our view was that the claimant was only willing in fact to take a role at the same salary as his previous Grade 9 salary.[246]As such, we determined that any other role as signaller, at a lesser Grade than Grade 9, would not be appropriate, as it would have to be at the associated lower grade of pay, not at the Grade 9 pay. A salary that fell below his previous salary at Grade 9 level would (reaosnably enough) not be acceptable to the claimant. We therefore made no order for re-engagement. Failure to mitigate Retirement[247]We have found that the claimant, had he not been dismissed, was planning on retiring at the age of either 60 or 63.[248]We consider that there was a 50% chance of him retiring at 60 and a 50% chance of him retiring at 63. We are not satisfied that there are any other significant dates between March 2023 and March 2026 at which he may have retired: the claimant was clear in linking his retirement to two specific sporting events, the Isle of Man TT and the World Cup in America.[249]In terms of the apportionment of 50/50 to the two possible retirement dates, we recognise that there is evidence in the bundle pointing to the claimant planning to retire at 60 years old. However, as we have already set out, we accept that the claimant is financially astute. Regardless of any historic plan, we find he would have taken stock at the relevant points in advance of taking steps to retire and, had the financial climate have indicated that retirement at 63 would be more rewarding, we accept he would have stayed on until reaching that age. Alternative employment[250]We conclude that the claimant did not act unreasonably by failing to apply for other roles. We base this finding on the following facts: 250.1. The claimant had worked in an industry specific role for 26 years; 250.2. The respondent has a monopoly on the job of signaller, being the only employer of signallers in the country; 250.3. The claimant was nearing retirement age at the point of his dismissal; 250.4. The claimant had been dismissed for gross misconduct.[251]The respondent invited us to find that, had the claimant broadened his search, he would have been capable of obtaining a job within four months of his dismissal at £20 an hour, for 37 hours a week. This was a valiant submission by Mr Crozier, given the complete lack of evidence on which to base it. The respondent has not provided evidence of any jobs to which it says the claimant should have applied, whether in the railway industry or not. We therefore have no evidence of what jobs were available other than the ones to which the claimant applied. Without such evidence, we cannot be satisfied and make findings that, had the claimant applied for any other job, he would have obtained one, much less at how many hours and at what rate of pay.[252]The respondent had not proven on the balance of probabilities that the claimant unreasonably failed to take any specific reasonable step to mitigate his loss. We conclude that the claimant has not failed to mitigate his loss. Additional figures to be added to the net weekly pay figure[253]We have found that none of the figures claimed as being eligible to add to the net weekly pay are proven on the balance of probabilities. As such, no additional figures will be added to the net weekly pay figure. Loss of statutory rights[254]The parties agreed that £500 was a suitable figure for this head of loss.