Mr G Paul v Morrison Data Services Ltd: 3304574/2024

EMPLOYMENT TRIBUNALS

Case No 3304574/2024

Between

Mr G PaulClaimant

Morrison Data Services LtdRespondent

Before

Employment Judge L Wilson

In person for claimant

Mr Scott Davis (instructed by Counsel) for respondent

Date 25 September 2025

JUDGMENT

[1]The judgment of the Tribunal is that the Claimant’s claim of unfair dismissal is not well founded and is dismissed.

REASONS

[1]By this claim, the Claimant brings a claim of unfair dismissal.

[2]A list of issues was presented by each party at the outset of the hearing, the combination of which identified the following issues. i. Was there a dismissal? This was not in dispute. ii. Can the Respondent establish a potentially fair reason for the Claimant’s dismissal? The Respondent contends that the Claimant was dismissed on the grounds of ‘gross misconduct’; ie a ‘conduct’ dismissal. The Claimant asserts that the real reason was personal dislike and exaggerated performance issues. iii. Is conduct potentially fair at law? It is not in dispute that ‘conduct’ is a potentially fair reason at law under s98(2) ERA 1996. iv. Was it reasonable for the Respondent to treat that as a sufficient reason to dismiss? v. Was the dismissal within the band of reasonable responses, having regard to the circumstances of the employer? vi. Did the Respondent adopt a fair procedure?

[3]There were no other claims before the Tribunal. Evidence

[4]The Tribunal heard evidence from the Claimant himself, and Mr Andrew Vickers on his behalf. The Tribunal received written evidence from Mr Mark White, on behalf of the Claimant. The Claimant notified the Tribunal on the first day of the Final Hearing that Mr White was unavailable because he is in hospital with a serious health condition. No medical evidence was provided but the Tribunal accepted this explanation. Mr White’s statement was signed, dated and contained Mr White’s full address, as well as the declaration of truth. The Respondent first had sight of this statement on or around 15 January 2025. There was nothing, on its face, or otherwise, to indicate it was a statement compiled by the Claimant, as suggested by the Respondent. The Tribunal accepted the statement into evidence.

[5]On behalf of the Respondent, the Tribunal heard evidence from the following witnesses:a. Ms Patricia Lynch. During the time relevant to this claim, she was employed by the Respondent as the Employee Relations Specialist. Whilst working in that position, her role entailed the provision of support, advice, and guidance to management staff.

b. Mr Mark Butchard, employed by the Respondent as ‘Regional Performance Manager’. As part of that role, he was responsible for overseeing five teams North of London, which included the Claimant’s team at the relevant time.

c. Mr David Wall, also employed by the Respondent as ‘Regional Performance Manager’. He previously held the role of Field Delivery Manager, the same role held by the Claimant.

d. Mr Ashley Brough, who commenced employment with the Respondent as a ‘Senior Field Manager’ in April 2023, with responsibilities for the South of the country.

e. Mr Paul Webb, employed by the Respondent as a ‘Senior Field Manager’ in the North Region.

[6]The Tribunal had the benefit of a bundle of documents comprising 583 pages, plus witness statements. The Tribunal was directed to read certain documents from the witness statements. Other documentation

[7]The Respondent provided an evidence bundle on 28 October 2024, in accordance with Case Management Orders. Thereafter, the Claimant raised further evidence and, in response, the Respondent revised and produced a second bundle on 21 December 2024. On the first day of the Hearing, the Claimant applied to adduce further written evidence. In an oral decision, this application was refused. During his oral evidence and submissions, the Claimant asserted that documents were in existence which assisted his claim, but either they were in the bundle of disallowed documents, ‘at home’ or that they had been requested under a data subject access request and never received. Findings of Fact relevant to the case

[8]The Claimant raises a number of grievances. The Tribunal has reminded itself that the remit of the Employment Tribunal is to determine the single claim of unfair dismissal. It has therefore concentrated on reaching findings of fact about matters relevant only to this claim. The Tribunal’s role is to determine whether or not the Claimant was unfairly dismissed and has not embroiled itself in the numerous frustrations that the complainant feels towards his former employer, unless relevant to the sole claim.

[9]The Respondent is a national company providing regulatory and field services to energy and water companies. The Claimant was employed by the Respondent as a ‘Field Delivery Manager’. In that role, he was responsible as operational line manager for a team of approximately 50 entry-level ‘Metering Representatives’ in the Bedfordshire area.

[10]He was initially employed as a “Field Worker” with Siemans in 2004; then transferred via a TUPE transfer to ‘G4S’, the former name of the Respondent.

[11]The Respondent’s standard terms and conditions of employment are contained the Employee Handbook (referred to before me as the ‘Grey Book’).

[12]In 2015, the Claimant suffered serious health problems and in 2016 he underwent triple heart bypass surgery. In September 2017, concerns began to develop around the Claimant’s level of performance in his role. He was therefore placed onto a ‘Performance Improvement Plan’, which continued throughout October and November 2017.

[13]In November 2021, the Claimant was on sickness absence for a period of 30 days, which triggered the Respondent’s Sickness Absence Monitoring Policy, necessitating an Attendance Review on 30 December 2021. The Claimant was absent for a further 14 days in February 2022, which triggered another Attendance Review on 18 March 2022.

[14]Concerns regarding the Claimant’s performance reemerged in October 2022. On 31 October 2022, during a telephone meeting with Mr Paul Smith, the Respondent Regional Performance Manager, the Claimant was again placed on a Performance Improvement Plan.

[15]On Tuesday 1 November 2022, as part of a national ‘redrawing’ of the Respondent’s ‘catchment areas’ for the provision of data collection services regionally, the Claimant was transferred from managing a team in the Bedfordshire region (C17) to one in the Oxfordshire region (SW4). This was one of several reallocations.

[16]On Friday 4 November 2022, the Claimant took a period of planned annual leave, returning to work on Tuesday 8 November 2022. The Claimant told the Tribunal that he asked Mr Damien Hazell, the previous SW4 Field Delivery Manager, to “keep an eye on things” in his absence. The Claimant accepted in evidence that he did not provide a handover to his Assistant Field Manager, Mr Mark White. The Claimant told the Tribunal that this was because he did not know Mr White and was unaware of his level of training. This failure to handover to Mr White resulted in the Respondent not being aware that work had not been allocated to the meter reading staff in the Claimant’s team for the four days he was absent.

[17]The Claimant accepted in evidence that he did not complete ‘payroll’ for any of his staff prior to going on leave. He told the Tribunal this was because he did not know their names. Again, the Claimant agreed that he did not inform Mr White of any of this.

[18]Thereafter, a considerable amount of operational disruption was incurred by the Respondent, including late payment of staff wages and a reduction in the number of meters read, which in turn leads to loss of profit and a failure by the Respondent to meet contractual targets.

[19]Regional Performance Manager, Mr Butchard, invited the Claimant to attend a meeting on 10 November 2022 with himself. The Performance Improvement Plan already in place, was updated to reflect and address these latest concerns, with a deadline of 8 December 2022 for required improvement (Page 261 of the Bundle).

[20]The Claimant rejected that there were issues with his performance and requested a return to his previous geographical catchment area of Bedfordshire.

[21]On 18 November 2022, the Claimant added his own commentary to the Performance Improvement Plan and sent his amended version to Mr Mark Butchard and Mr Paul Smith, his former Regional Performance Manager (Pages 576-578 of the Bundle). It transpires that Mr Butchard did not read the email or open the attachment.

[22]At this time, the Respondent became aware of a statistically high number of complaints by customers of the Respondent’s commercial clients made against Metering Representatives working under the Claimant in his team. Ms Patricia Rowley conducted an investigation into these matters, involving interviews with the Claimant’s team, as well as two interviews with the Claimant himself. In her Management Investigation Report dated 9 January 2023, Ms Rowley concluded that those interviews revealed a seriously concerning lack of knowledge or understanding by the Claimant as to his role and responsibilities (Page 265-269 of the Bundle). Mr Butchard was not aware of this investigation at this time.

[23]Meanwhile, on 8 December 2022, the Claimant emailed the Respondent seeking a review of the Performance Improvement Plan (Page 551 of the Bundle). The following day, the Respondent confirmed that the Claimant’s performance still required improvement but agreed to pause the plan in terms of its 8 December deadline for required improvement, to allow the Claimant time to formulate and submit any proposals. At a telephone meeting on 14 December 2022, this was discussed with the Claimant, who notified the Respondent that he was taking legal advice on raising grievances against the Respondent and that he would provide an update in the New Year.

[24]On 23 December 2022, the Claimant emailed the Respondent, expressing his unhappiness with the current position, which he claimed was affecting his health, and again requested to return to his management of the Bedfordshire area (Page 549 of the Bundle).

[25]The Claimant emailed the Respondent on 16 January 2023, stating that he would be attending hospital appointments on the afternoon of Friday 20 January 2023 (Page 573 of the Bundle).

[26]On Monday 23 January 2023, the Claimant failed to attend a work meeting. In response to enquiries, he stated that he had been undergoing hospital tests, of which the Respondent was unaware (Page 557 of the Bundle).

[27]The Claimant attended the next scheduled trading review meeting on 26 January 2023. As a result of his discussions with the Claimant, Mr Butchard concluded that there were a number of issues with the Claimant’s management of his team and that the Claimant needed to be reminded that the ultimate responsibility for his team was his as the Field Delivery Manager, not that of his Assistant Field Manager (Page 223 of the Bundle). These issues were discussed with the Claimant, who identified six staff members in his team who he considered were not delivering adequately and undertook to investigate and address those concerns with them.

[28]On 9 February 2023, the Claimant had recorded his activities that day as having visited the six underperforming members of his team, in person, to conduct their ‘one to one’ meetings individually. However, due to a number of discrepancies, this was investigated and it transpired that the Claimant had in fact conducted a group meeting with all staff members simultaneously. It also transpired that he had not notified the staff members that they were due to be attending a ‘one to one’ meeting, nor that they had all been placed on a Performance Improvement Plan. The Claimant made no records of the meeting.

[29]Despite his initial denials to the Respondent about having conducted such a ‘group meeting’ (Page 49 of the Bundle), the Claimant accepted that he had done so, in his evidence to the Tribunal. He told the Tribunal that he had done so, “for ease”.

[30]On 1 March 2023, Mr Butchard, together with Mr Damien Hazel, held a ‘Plan and Responsibility Meeting’ with the Claimant and his Assistant Field Manager, Mr Mark White, the purpose of which was to ensure they understood their respective roles and were capable of managing the team (Pages 229-231 of the Bundle).

[31]On 3 March 2023, the Claimant submitted a sickness self-certification form to the Respondent, citing “stress”. A period of continuous long-term sickness absence followed, for a number of cited health reasons, which ultimately ran to over 6-months in length.

[32]On 13 March 2023, the Claimant submitted a doctor’s sick note citing “stress” and then served a series of further short-term doctor’s notes citing the same. On 29 March 2023, the Respondent referred the Claimant for an Occupational Health Assessment, which was performed on 5 April 2023. Later that same day, the Claimant attended Luton Hospital.

[33]This Assessment concluded that the Claimant remained able to attend management and disciplinary meetings. However, upon the advice of Ms Lynch, the Respondent paused escalation of the capability and conduct processes, due to the Claimant’s absence. The Tribunal accepted Ms Lynch’s evidence that her advice to “pause proceedings” was done because she felt it was “reasonable and appropriate”, if someone “struggles with health”, the Respondent would look to support health and wellbeing, and that it “wouldn’t make sense to continue ‘conduct’ investigations when someone is struggling with health”.

[34]Over the next three months, the Claimant presented sicknotes to the Respondent citing “ulcer” as the reason for being unable to attend work. On 28 June 2023, the Claimant underwent an endoscopy, which found that there was no issue with an ulcer. On 4 July 2023, the Claimant presented another sicknote, citing the reason as ‘ulcer’.

[35]The Claimant was invited to attend a ‘capability hearing’ via Microsoft Teams on 7 July 2023. During this hearing, the Claimant expressed that he did not wish to return to work as a Field Delivery Manager. Alternative employment was discussed, but the Claimant rejected these as unsuitable. The Respondent adjourned proceedings, pending an updated Occupational Report.

[36]On 17 July 2023, the Claimant presented a 3-week doctor’s sicknote, citing “high blood pressure”. He was assessed by Occupational Health on 25 July, during which he reported a diagnosis of a gastric ulcer and that he required surgery. He further reported that he was having a follow up endoscopy in August. He omitted that the endoscopy on 28 June found no issues with an ulcer. This second Occupational Health Assessment found that his health conditions remained the same as in April.

[37]The Claimant continued to present sicknotes citing high blood pressure. On 16 August 2023, the Respondent payroll department notified the Claimant that his full company sick pay had expired on 14 August and that his Statutory Sick Pay would expire mid-September 2023.

[38]Upon the Claimant’s confirmation of his imminent return to work, Mr Butchard informed the Claimant’s team of this. At this stage, Mr Butchard was made aware that staff were “agitated” about the group meeting which the Claimant had conducted with them on 9 February 2023. Mr Butchard decided that he needed to investigate the matter further. To that end, Mr Butchard conducted interviews on 7 September 2023 with members of staff who had been present at the 9 February 2023 meeting (Pages 286-295 of the Bundle). Following those interviews, Mr Butchard considered that if such a group meeting had taken place in the manner alleged, this potentially violated a number of Respondent policies, including those on data protection, confidentiality and dignity at work. Both throughout the investigation and in his evidence, the Claimant disputed that the group meeting breached any policies.

[39]During this period, Mr Butchard learned of Patricia Rowley’s earlier investigation, which had effectively been paused during the Claimant’s long term sickness absence in 2023.

[40]The Claimant returned to work on 6 September 2023, on a ‘phased’ basis. The adjourned Capability proceedings were resumed, and the Claimant attended the resumed capability hearing on 13 September 2023. During that hearing, the Claimant was questioned as to the veracity of what he had informed the Occupation Health assessor on 25 July in respect of his ulcer and supposed upcoming surgery. He claimed that the fit note was “incorrect” and “should have said high blood pressure”. He further claimed that there had been a “misunderstanding” by the Occupational Health Assessor. The Tribunal rejects the suggestion that the doctor’s note was incorrect or that there was a misunderstanding. The Tribunal is satisfied that on 25 July 2023 the Claimant omitted to mention that the endoscopy on 28 June found no issues with an ulcer, as he did not wish to return to work and used his previous ulcer as an excuse.

[41]The hearing was adjourned then reconvened, upon which the Respondent issued the Claimant with a 12-month written warning because of the duration of his sickness absences and because the sicknotes did not align with the accounts he had given to the Respondent or to Occupational Health.

[42]On the same day, the Respondent wrote to the Claimant to invite him to an investigatory meeting on 19 September 2023, in respect of the investigatory proceedings into his performance capability and conduct.

[43]The investigatory meeting took place on 19 September 2023 between the Claimant and Mark Butchard. Two days later, Mr Butchard notified the Claimant that he was being suspended with immediate effect pending further investigation. Mr Butchard wrote to the Claimant the same day confirming this in writing. The Tribunal accepted Mr Butchard’s evidence on this point and is satisfied that Mr Butchard’s letter reflected his genuine reasons for suspending the Claimant.

[44]On 29 September 2023, the Respondent wrote to the Claimant confirming the outcome of the capability process and the 12-month warning issued on 13 September 2023. The Claimant appealed this decision and Mr Paul Webb duly invited him to attend an appeal hearing by video on 8 November 2023. The Claimant notified Mr Webb that he wished to attend an in-person appeal hearing instead, which was granted. This took place on 27 November 2023. Mr Webb heard the points of appeal and adjourned the hearing for consideration. By letter of 19 December 2023, Mr Webb provided his written outcome of the appeal, which was not to uphold the appeal.

[45]In the meantime, on 15 December 2023, the Respondent wrote to the Claimant inviting him to a Disciplinary Hearing on 21 December, which was ultimately rescheduled at the Claimant's request to 28 December 2023. On 20 December 2023, the Claimant emailed the Respondent to confirm he would attend this hearing and also requested to alter annual leave he had already booked for January 2024, due to a change in his flights. The Respondent requested evidence of the change in flights, which the Claimant did not provide. In the absence of this evidence, the Respondent declined his request. On 22 December 2023, the Claimant responded, thanking the Respondent for its “non assistance” and gave “advance notice” that he would be on a flight on 5 January 2024. The Respondent wrote to the Claimant the following day, notifying him that this would constitute an unauthorised absence and directed his attention to the July update to the staff attendance policy and that this would amount to “gross misconduct”.

[46]The Claimant attended the Disciplinary Hearing on 28 December 2023, as scheduled, via Microsoft Teams. It was chaired by Mr David Wall. The Claimant was accompanied by Mr Andrew Vickers.

[47]During the course of that hearing, the Claimant was presented with the material gathered during Mr Butchard’s investigation into the Claimant’s ability to perform in the role, as well as serious concerns regarding his conduct, honesty and integrity. The Hearing took approximately 6 hours, during which time the Claimant answered questions with “no comment”.

[48]At 15:50 the hearing was adjourned until 2 January 2024, pending further investigation and consideration.

[49]On 2 January 2024, the Claimant attended an ‘outcome’ hearing with the Respondent, during which he was summarily dismissed on the grounds of gross misconduct.

[50]On 9 January 2024, the Claimant appealed his dismissal and raised a number of grievances against Mark Butchard and David Wall.

[51]The Claimant attended the dismissal appeal hearing remotely on 5 February 2024, conducted by Mr Ashley Brough. The outcome was adjourned pending further investigation and on 7 March 2024, the Respondent wrote to the Claimant confirming his gross misconduct dismissal.

[52]Upon receipt, the Claimant made a Subject Access Data Request of the Respondent and on 1 May 2024 he presented the claim and ET1. The Law Unfair Dismissal

The Law

[53]The Tribunal has had regard to section 98 of the Employment Rights Act 1996 ("the 1996 Act"). Reason for dismissal

[54]The Respondent accepts that the Claimant was dismissed on 2 January 2024. By section 98(1) it is for the Respondent to show the reason, or if more than one, the principal reason for the dismissal.

[55]A dismissal will be unfair unless it is for one of the admissible reasons specified in the 1996 Act. Those reasons include “a reason which relates to the conduct of the employee” (Section 98(2)(b)).

[56]The task of identifying the real reason for dismissal rests with the Tribunal (notwithstanding that the burden rests on the employer to prove that it was one of the five potentially fair reasons). The correct characterisation of the reason for dismissal will depend on what was at the forefront of the employer’s mind. Fairness

[57]If a potentially fair reason is shown by the employer, the Tribunal needs to have regard to Section 98(4) of the 1996 Act, which provides that: "the determination of the question whether dismissal is fair or unfair (having regard to the reasons 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".

[58]The test in section 98(4) was further clarified by the Employment Appeal Tribunal in Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

: i. the starting point should always be the words of Section 98(4) themselves; ii. in applying the section an Employment Tribunal must consider the reasonableness of the employer's conduct not simply whether they (the members of the Employment Tribunal) consider the dismissal to be fair; iii. in judging the reasonableness of the employer's conduct an Employment Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. In many, though not all cases, there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; iv. the function of the Employment Tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair. If the dismissal falls outside the band it is unfair".

[59]The reason for dismissal is significant in determining fairness.

[60]The Tribunal must be satisfied that the procedure followed in relation to the Claimant’s dismissal fell within the band of reasonable responses (Whitbread plc v Hall

[2001] EWCA Civ 268

[61]The Tribunal should consider the process as a whole, including the appeal, when determining whether the dismissal was fair or unfair. Law on Remedy

[62]If a claim of unfair dismissal is well founded, the Claimant may be awarded compensation under Section 113(4) of the 1996 Act. Such compensation comprises a basic award and a compensatory award, calculated in accordance with sections 119 to 126 of the 1996 Act.

[63]Where the Tribunal considers that any conduct of the Claimant prior to dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, it must reduce the amount accordingly (section 122(2)). In this regard, the question is not whether the employer believed the Claimant committed the conduct in question but whether the Tribunal so believes.

[64]So far as the compensatory award is concerned, the 1996 Act provides that the amount of compensation shall be such amount as is just and equitable based on the loss arising out of the unfair dismissal. In Polkey v AE Dayton Services Limited

[1987] UKHL 8

the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the Claimant would have been fairly dismissed in any event had a fair procedure been followed.

[65]Furthermore, where the Tribunal finds that dismissal was to any extent caused or contributed to by any action of the Claimant, it must reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding (s123(6)). As with any reduction under s122(2), the question is not whether the employer believed the Claimant committed the conduct in question but whether the Tribunal so believes. Conclusions Dismissal

Conclusions

[66]The Claimant was summarily dismissed on 2 January 2024. Reason for Dismissal

[67]The Respondent has shown that the reason or principal reason for the Claimant’s dismissal was the Claimant’s conduct, namely its decisions that he had committed gross misconduct as set out in the dismissal letter. That is a reason falling within subsection 2.

[68]The decision to dismiss the Claimant was reached because the Responded decided that the investigations showed a series of serious, long-term failings on the part of the Claimant in terms of his conduct as a Field Delivery Manager. The Tribunal is satisfied that, at the time the decision to dismiss was taken, the Claimant’s misconduct was the Respondent’s reason for dismissal and that it dismissed the Claimant for that reason.

[69]That much is clearly evidenced by the meeting notes and subsequent correspondence. The detailed minutes of the 2 January 2024 outcome hearing clearly express that the dismissal was “on the grounds of gross misconduct” (Page 209 of the Bundle). This was reiterated in writing, in the outcome letter of 5 January 2024, in which Mr Dave Wall specified the reason for the dismissal was “on the grounds of gross misconduct” (Page 106). In particular, the Claimant’s conduct contravened the following sections of the code of conduct:a. 3.1 Safety

b. 3.2.1 Attendance

c. 3.3 Relationships with other employees

d. 3.8 Miscellaneous rules and conditions

[70]The Tribunal found Mr Wall to be an impressive and credible witness and accepted that this letter genuinely reflected his assessment and views.

[71]The Claimant hypothesises that factors other than his conduct were the true reason for his dismissal, namely, there was a “witch hunt” (his phrase) to get him out, either because he was not liked, or because he was not a “yes man”, or because it was “convenient because there was no management position available for him”. The Claimant points to the “historical” nature of the allegations against him and disputes that the simultaneous staff meeting he now admits he conducted, amounts to misconduct “in the ordinary sense”, less still gross misconduct.

[72]The Claimant repeated throughout his evidence that “no concerns were raised” about his performance or conduct prior to his dismissal and submits that his conduct “does not come close” to gross misconduct.

[73]The Tribunal does not accept the Claimant’s submissions. The Claimant has not advanced any documentary evidence that supports his belief that there was any “personal dislike”. Had personal dislike truly been the reason for the Claimant’s dismissal, the dismissal could have occurred long before 2 January 2024.

[74]Both Mr Butchard and Mr Wall gave evidence that the decision to suspend and dismiss had nothing to do with the Claimant being disliked. Mr Butchard also gave evidence that there was a role for the Claimant to return to after his suspension, namely his Field Delivery Management SW4 Role. Mr Butchard told the Tribunal that he put a temporary manager in place as a secondment whilst the Claimant was suspended, but the plan was for him to return to this position upon the conclusion of his suspension. In answer to the Claimant’s suggestion, Mr Butchard gave persuasive evidence that “the Claimant was not suspended or dismissed for convenience. I have not found any of this convenient”.

[75]The Tribunal found both Mr Wall and Mr Butchard credible witnesses. Their evidence was corroborated by the documentary evidence, particularly the detailed hearing notes, that the Claimant’s conduct was an ongoing concern, pre-dating and post-dating his sickness absences. A Performance Improvement Plan began during the Claimant’s time in C17, again demonstrating that his assertion that no concerns were raised about him before he was redeployed is wrong.

[76]The running theme throughout the investigations into the Claimant were his performance, conduct, integrity and honesty. The focus within the minutes of the meeting was the Claimant’s performance, conduct, integrity and honesty. The dismissal letter and appeal refer to the Claimant’s conduct at work, integrity and honesty. The documentary evidence demonstrates that the Claimant’s conduct fell far short of that expected of a Field Delivery Manager, and that he had not acted with honesty and integrity during the course of his employment. In particular, he had sought to mislead the Respondent in respect of the joint staff meeting, falsely claiming that he had conducted individual ‘one to one’ meetings, knowing that this was not true. He also sought to mislead the Respondent and Occupational Health regarding his ulcer.

[77]The Tribunal is satisfied that the investigation necessarily took time because proceedings were paused due to the Claimant’s health and sickness absences. His 6-month absence rendered it inevitable that the hearings which took place after his return considered “historical” conduct, pre-dating his sickness leave.

[78]Far from being unfair, this additional time was designed to be fair towards him so that he did not have to deal with an investigation whilst unwell. The Tribunal is satisfied that had the Claimant not been absent for so long, the investigation would have resumed sooner.

[79]Accordingly, the Tribunal is satisfied that the Claimant’s dismissal was for a potentially fair reason falling within Section 98 of the 1996 Act, namely the Claimant’s conduct. This is significant because the Tribunal can only properly consider the question of fairness in the context of the reason found for the dismissal. Procedural Fairness

[80]The Claimant submits that the Respondent’s process was “riddled with defects”. On the face of it, there were some shortcomings within the processes adopted by the Respondent and the Tribunal can understand why the Claimant felt aggrieved at times. His email dated 10 November 2022 went unanswered and it transpires that the attachment wasn’t opened. Whilst on sick leave, he was not contacted as regularly as he feels he should have been. The investigation process took time and he was not sent updates as quickly as the ‘grey book’ suggests he should have been. Each of these matters, understandably, frustrated him.

[81]However, the Tribunal does not consider that these perceived shortcomings amount to procedural unfairness or were unreasonable, in the circumstances of this case. The matters the Claimant raised in his 10 November 2022 email were irrelevant to the investigation and reasons that he was dismissed. The Respondent was aware of the Claimant’s attitude, as set out in the email, because he had already made them known verbally to Mark Butchard. The lack of reply to the email did not affect the fairness of the dismissal, which was conducted fairly and thoroughly. Equally, the Handbook is only part of the procedural fairness, but there are other competing factors, including equity to the Claimant. The process took a long time because it was important not to rush such important decisions as to the Claimant’s employment, especially set against the background of his health and sickness absences.

[82]Contrary to the Claimant's assertion that no documentary evidence was produced to support the allegations against him, the Disciplinary Pack presented to Mr Dave Wall contained details of the allegations, plus appendices. This material included investigation interviews with staff members, welfare and occupational review meetings, trading review meetings, performance an appraisal records, sickness records and compliance reports.

[83]This was sent to the Claimant in advance of the 21 December meeting. The Tribunal rejects his complaint that he should have been sent it through the post. The Tribunal accepts Mr Butchard’s explanation that it was too large to send through the post, which would have had resources implications, and the Claimant was competent at emails so was well able to consider the material electronically (as has been evident to the Tribunal throughout these proceedings).

[84]The Tribunal is satisfied on the evidence that the Claimant was adequately consulted throughout the proceedings and was afforded his right to attend the hearings, make representations and to appeal.

[85]The Claimant is aggrieved by an overlap in personnel in various of the meetings and complains that the disciplinary hearing was biased. Mr David Wall acted as note-taker during the Welfare and Occupational Health Meeting on 5 September 2023 and during the Capability Hearing on 13 September 2023. On 28 December 2023 and 2 January 2024, Mr Wall chaired the Disciplinary Hearing. The Tribunal agrees that, in so far as resources allowed, it would have been preferable for there to have been no cross-over of personnel, even if just to reassure the Claimant that the proceedings were entirely impartial. Nevertheless, the Tribunal is satisfied that this cross-over did not render the process unfair. As note taker, Mr Wall took no active part in the earlier meetings or decision-making process, and the Tribunal is satisfied that he conducted a fair hearing with an open mind. As already alluded to, that hearing lasted for approximately 6 hours and, as the minutes reveal, was extremely thorough. The Claimant opted to answer questions with “no comment”. The Tribunal is satisfied that the Claimant received a fair and unbiased disciplinary process, as demonstrated by the Respondent’s willingness to alter the dates at hearings at the Claimant’s request and the fact that no decision was reached during the initial hearings, but rather was adjourned for further investigation and consideration. Mr Butchard was challenged by the Claimant in evidence as to the nature of his relationship with Mr Wall. The Tribunal accepts Mr Butchard’s evidence that he does not have a personal relationship with Mr Wall and that he presented the investigation in a fair and non-partisan manner.

[86]The Claimant feels aggrieved that no prior warnings were issued ahead of the dismissal. The Tribunal is satisfied that the Respondent correctly and fairly followed its own disciplinary policy throughout the process (Pages 502-507 of the Bundle). The Claimant was warned that dismissal was a possibility. The Claimant’s conduct did amount to gross misconduct as defined within the grey book, namely, ‘behaviour of such a nature that that the Company is unable to tolerate the continued employment of the individual concerned’ (Page 503).

[87]It is important to note the factors which were taken into account by the Respondent in reaching its decision to dismiss the Claimant, and the impact on the Respondent of the Claimant’s conduct. Mr Paul Webb gave persuasive evidence to the Tribunal as to the “significant amount of operational disruptions” caused by the Claimant's conduct. In particular, the Claimant’s failure to provide a handover before going on leave in November 2022 resulted in approximately 20 members of staff not getting paid when they should have been. Other managers had to step in to complete payroll and senior management had to become involved in order to authorise payments.

[88]The Claimant’s failure to allocate ‘meter reads’ before going on leave meant that work might have been missed or not completed so the Respondent was at risk of failing to meet contractual requirements, across a number of contracts.

[89]The Claimant consistently failed during the disciplinary process to explain why he had conducted himself in the manner described by the Respondent witnesses. He denied issues with his performance or conduct, notwithstanding the documentation to the contrary. This was mirrored in his evidence to the Tribunal, where at times he deflected responsibility onto others, including also seeking on occasion to blame his own, non-attending witness Mr White, for failings at work. Within the Band of Reasonable Responses

[90]The Tribunal is satisfied that, taking into account all of the above circumstances, dismissal was a response falling within the range of reasonable responses open to a reasonable employer. The Claimant had committed acts of gross misconduct as set out above, breaching policies and leading to a loss of trust and confidence. In all the circumstances of the case, including the size and administrative resources of the employer, the Respondent acted reasonably in treating the Claimant’s conduct as sufficient reason for dismissing him.

[91]It follows that the Claimant’s complaint of unfair dismissal fails and is dismissed. Approved by: