Mr P Langton v Buckinghamshire Fire and Rescue Service: 3308216/2023

EMPLOYMENT TRIBUNALS

Case No 3308216/2023

Between

Mr P LangtonClaimant

Buckinghamshire Fire and Rescue ServiceRespondent

Before

Employment Judge Dick

Ms S Harty (instructed by counsel) for claimant

Mr R O’Keefe (instructed by counsel) for respondent

Date 29 December 2025

JUDGMENT

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

[2]It is not appropriate to reduce any damages payable to the claimant on the basis that there is a percentage chance that the claimant would have been fairly dismissed in any event.

[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 65 %.

[4]It is just and equitable to reduce the basic award payable to the claimant by 65 % because of the claimant’s conduct before the dismissal.

REASONS

[1]The claimant was employed by the respondent as a firefighter for a number of years. By the time this claim is concerned with he was a crew commander. At a meeting on 22 December 2022 the claimant was said to have made remarks relating to a female member of the public whose rescue he had been involved in some days beforehand. The comments were characterised by the respondent as misogynistic, derogatory and/or sexualised. A disciplinary process was conducted and the claimant was dismissed without notice for gross misconduct. While the claimant accepts that he was guilty of misconduct, and that conduct was the reason for the dismissal, it is his case that his dismissal was unfair because summary dismissal was not an appropriate sanction and also because of various flaws in the disciplinary procedure. Those flaws were said to include: giving little or no weight to significant mitigation available to the claimant; taking into account irrelevant information in support of an erroneous finding that the claimant’s behaviour on 22 December was not an isolated incident; a failure to make clear findings on what exactly the claimant had said (and therefore a failure to establish the gravity of the misconduct); and taking into account an admission that the claimant had not in fact made. The respondent’s case is simply that its decision to dismiss the claimant was within the band of reasonable responses, particularly where, in the current context, it was entitled to take a robust approach to behaviour such as this. PROCEDURE, EVIDENCE etc.

[2]Before the evidence was called I explained to the parties that I would read the witness statements but they should be sure to refer me to any documents of relevance in the agreed bundle during the course of the evidence or submissions. Counsel helpfully suggested a number of pages which I might read in advance as they would be dealt with during the course of the evidence. I also discussed the issues with the parties. I indicated that I would not need to hear evidence about remedy at this stage, with the exception of any point about whether, if the claimant was unfairly dismissed, he might otherwise have been dismissed had a fair process been followed and/or whether he contributed to his dismissal.

[3]After taking time to read the statements, I heard evidence from the witnesses. In each case the usual procedure was adopted, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined. The respondent called Calum Bell, at the material time an Area Commander, who made the decision to dismiss the claimant. The claimant also gave evidence.

[4]At the conclusion of the evidence I heard oral submissions from both counsel. I had initially been minded to give an oral judgment on the third and final day of the hearing, but having taken some time to consider the matter I asked my clerk to indicate to the parties by email that I in fact would issue a reserved decision. Counsel for the respondent provided me with some supplementary written submissions, to which counsel for the claimant then provided a written response. FACT FINDINGS

[5]I find the following facts on the balance of probabilities. Where facts were not in dispute I simply record them; where I have needed to resolve disputed facts I make that clear. I have not made findings on every disputed issue, but merely on those which assisted me in coming to a decision bearing in mind the issues in the case.

Background

[6]The claimant first worked for the respondent as an “on call” or part-time fire fighter, but from January 2006 was a full-time firefighter. Around 2020 he was promoted to the role of crew commander, and as such was considered to be a junior officer. This was originally on a provisional or “temporary development” basis; he was appointed to the substantive role in August 2021. At the times this case is concerned with he worked at Gerard’s Cross fire station and was in charge of Red Watch.

[7]During the course of the disciplinary procedure which resulted in the claimant’s dismissal, the respondent took account of a number of previous events, and so before dealing with what happened in 2022/2023, I deal with those past events. The “Note for File” – June 2017

[8]On 7 June 2017 a “Note for File” was placed on the claimant’s record. The note related to 3 separate issues. First, the claimant was said to have displayed a poor attitude and fallen asleep during a presentation by a crew commander. The “outcomes” recorded were for the claimant to apologise to the crew commander and to adjust his attitude. The second issue was a complaint that the claimant had been rude and aggressive to another employee. The record itself says that the claimant did not believe that his approach was rude or aggressive, and in the absence of any formal disciplinary finding on that point, in my judgment it would be inappropriate for me (or for anyone else) to conclude that the claimant had in fact been rude or aggressive. I therefore do not need to make any findings relating to the claimant’s oral evidence to me that the written record in fact overstated what had happened. The outcome was that the claimant was told to apologise and to adjust his attitude. The third issue related to the claimant not physically positioning himself well whilst undertaking a particular role and not giving the role sufficient attention. The record shows the claimant accepting some degree of fault, with the outcomes being for the claimant to complete a training package and for him to receive some guidance on future similar occasions. The end of the Note recorded that the outcomes would be monitored for the next six months, with reviews at three and six months. It was also noted that during that period any further “complaint or behavioural deficiencies” could result in formal disciplinary action.

[9]There was no real dispute that what I have just referred to was “informal action” under paragraph 16 of the respondent’s Service Document Procedure: Discipline. So far as is relevant the procedure says: “This will be a note for file… The note for file will be kept on the employee’s case management file, however will be disregarded for discipline purposes after a specified time period, normally six months.”

[10]In my judgment the words of that policy are clear and unambiguous. I do not accept the respondent’s submission that this policy allowed for the file note still to be considered in disciplinary hearings after that period as long as it was only used to consider whether the claimant was likely to respond positively to penalties short of dismissal in the future. It was a breach of the respondent’s own procedure for the file not to have been disregarded at the later disciplinary hearing. The fact that there was no objection made by the claimant at the hearing is neither here nor there in my judgment. The Personal Development Plan/Pack – 2020/2022

[11]I was shown a “Personal Development Plan”, completed in 2020 by the claimant and his “Line Manager/Assessor” (at that time, a Mr Newell). In the introduction the proforma says: “This Personal Development Plan (PDP) should be made as a joint agreement between the employee and the line manager/assessor. It should contain sufficient information to enable the candidate to achieve the required standard. The candidate, their assessor and line manager or the Service should identify development areas in performance and knowledge evidence. Development can relate to the current role and/or preparation for future roles.” This wording in my judgment supports the claimant’s contention that PDPs were completed routinely to aid career development rather than, as I understood the respondent to be suggesting, that a PDP should be considered a “management intervention” in response to failures or deficiencies on an employee’s part – the use of the word “candidate” would be particularly odd in those circumstances. The plan sets out five identified development or training needs, with target dates of 16/10/20 and 31/12/20. The respondent’s case was that where the claimant had written in the plan things like “Practice taking a pause before speaking out and learning that what I say may have a negative effect on others”, that was evidence that management had identified, and the claimant had accepted, that his behaviour was unacceptable. I do not accept that characterisation, even where the claimant notes he will need to change his “mentality and outspoken ways”. I accept the evidence of the claimant that particular parts of the plan were there in order to provide evidence of particular things that the claimant needed to demonstrate in order to be fulfilling his new role as a junior officer, which at this point was only provisional. Essentially, I accept his characterisation that he was recognising that he would have to behave differently as an officer. I reject the respondent’s suggestion that the manager’s sign off on 31/12/20 indicates that the manager had recognised that the claimant needed to improve his interactions in the work place. It reads simply: “Pete has made great progress in his development into interaction in the workplace.”

[12]It should be noted that the respondent cannot have considered the Note for File and the 2020 PDP to have been significant barriers to the claimant’s temporary then substantive promotions in 2020 and 2021 respectively.

[13]I was shown a similar PDP document, “My Performance and Development Pack”, this time for 2022. It is clear to me on the face of the document that it was, again, a routine aid to career development rather than a “management intervention”. As just one example, the preamble to the document says: “These are your objectives. It’s what you are going to achieve and how you are going to use the leadership skills to make it happen.” The PDP records a conversation between the claimant and his line manager, Watch Commander Scott Knowler. One development area recorded is: “Letting things go and not taking things so personally.” While I can see that it is a somewhat strained interpretation of the sentence, I accept the claimant’s evidence that what he meant here was that he had a tendency not to be able to “let go” of work that he had delegated to others. It is significant in my view that on 29 November 2022 WC Knowler signed off the plan with the claimant’s performance rating as “high performer”, making only positive comments, which this sentence sums up: “He is currently going for his Watch Commander's interview, as he was unsuccessful last time and I hope he passes this time, as he definitely has the ability to do so.” The October 2022 meeting and email

[14]On 10 October 2022 Watch Commander Knowler sent an email to (the Gerards Cross) Station Commander Holtzhausen. WC Knowler set out the details of a one-to-one meeting he had conducted with the claimant on 8 October 2022. No formal record of this conversation was made and I accept the claimant’s evidence that the meeting was somewhat sprung upon him. The email set out in a number of bullet points things that WC Knowler said had been discussed. The points included WC Knowler “getting the impression” that the claimant questioned his decision-making at incidents and feeling like the claimant spoke to staff behind his back, as conversations would often stop when WC Knowler arrived. He said that unnamed members of staff had questioned the claimant’s management style and capability. He thought that the claimant would not succeed as a watch commander as he needed to learn to manage people better. WC Knowler was of the view that the claimant often got very heated and often over-reacted, which he said the claimant had admitted. He said that 3 out 9 firefighters at the station had said they were unable to work with the claimant. (I was not shown any other evidence relating to what those three people had said.)

[15]Even on the worst possible view of WC Knowler’s concerns, they related to the claimant’s management style and capability/competence, rather than to conduct. Note that within 6 or 7 weeks of this, WC Knowler went on to make the unequivocally positive comments about the claimant in the PDP I have referred to above. So if WC Knowler did make any “intervention”, on any objective view the intervention had succeeded. And the “intervention” had taken the form of an informal conversation, of which no record was shared with the claimant and no formal outcome was recorded. The respondent’s approach to misconduct etc

[16]In the Service Document Procedure: Discipline, the respondent set out a nonexhaustive list of behaviours which could constitute gross misconduct. It is right to say that, for example, using sexist language is not specifically listed there, though I note that the following (amongst others) are listed: “Unlawful discrimination or harassment”; “Bringing the Service into serious disrepute”. Likewise, the claimant’s original contract, which did not expressly say whether the disciplinary procedure was contractual, did not specify, for example, use of sexist language in its own non-exhaustive list, though the list did include “gross discourtesy” to colleagues.

[17]One of the documents in the bundle was a November 2022 report – i.e. a report issued very shortly before the December 2022 meeting which led to the claimant’s dismissal – titled Independent Culture Review of London Fire Brigade. For the purposes of this case it will suffice if I quote the following from the report. At page 67: “However, there were also many other examples of bullying and toxic behaviour that contributed to a working environment where women felt degraded and constantly belittled.” … “But on the question of sexism and misogyny, there appeared to be a worrying blind spot on the part of LFB about the scale of the problem and no urgency to address complaints.” Also, Recommendation 1 at page 80: “All managers should adopt a zerotolerance policy for bullying, racist and misogynistic behaviour in the workplace and appropriate disciplinary action must be taken to root out a toxic culture.” Three important points here. First, the report was about the London Fire Brigade, not the respondent. Second, there was no suggestion that this respondent had formally adopted a “zero-tolerance” policy. Third, even a zerotolerance policy would not necessarily mandate summary dismissal for any breach. That said, I accept that Area Commander Bell, who made the decision to dismiss the claimant, was entitled to consider that his decision fell in the wider context of that review – he took the view that its findings in relation to workplace culture and diversity and inclusion were applicable to the respondent. He was no doubt in a position to make that judgment, having worked in this area for over 30 years. In short, the respondent and AC Bell were entitled to take a particularly strong line on anything they properly considered to be sexist or misogynistic behaviour. Further attempts at promotion

[18]On 16 December 2022 the claimant was informed that he had been unsuccessful at his third attempt to complete what was known as the watch commander development centre (“WCDC”). Successful completion of the WCDC was a prerequisite for, though not a guarantee of, promotion to the role of Watch Commander. The claimant was particularly disappointed about this. He had, he told me, put a lot of work in, and had passed all but one element. He would now be obliged to take all the elements again and would not even be eligible to do that for another 12 or possibly 18 months (recollections differed over which of those was correct).

[19]I was shown records of the interview on 11 December at which the claimant had been unsuccessful. The respondent concentrated particularly on one question, scored 2 out 4, about how the claimant might help a member of staff feeling they had been bullied, harassed or discriminated against. The interviewer records towards the end that the claimant was “going off track” before noting “brings back to bullying”. It is unclear whether the person bringing it back was the claimant or the interviewer. Either way, I reject the respondent’s suggestion that this answer alone somehow proves that the claimant must have been aware – after the interview but in the absence of any feedback – that he scored poorly on that question, leaving him nursing a resentment about diversity issues, which he considered to be trivial. There were only four questions and he received the same score in another. I found the claimant’s answer in cross-examination about diversity being high on his agenda to be persuasive, as he was able to give examples of particular diversity-related actions he had taken. In short, I was not assisted by fact that in an interview the claimant did not give a very good answer to one of the questions. The 22 December meeting

[20]On Thursday 22 December 2022 the claimant and the rest of his watch took part in a meeting which also included two “civilian” employees, Anna Ditta, a Community Safety Coordinator in the respondent’s prevention department and Emily Wade, a Community Safety Advisor in the same department. Ms Wade was new to her role. The purpose of the meeting was to inform the watch about a forthcoming audit of the respondent’s prevention activity by HM Inspectorate of Constabulary and Fire & Rescue Services.

[21]There is no dispute that during the course of the meeting the conversation turned to an incident, or “shout”, that the watch had attended shortly beforehand. Part of the incident had involved caring for a female member of the public who had escaped from a fire; I will refer to her, as others have done, as “the casualty”. The respondent’s case is that the claimant made comments about the casualty, which were described variously as misogynistic, derogatory and/or sexualised. The investigation

[22]A complaint about the claimant’s behaviour in the December meeting first came to the respondent’s attention in January. In an email dated 5 January 2023, Station Commander Holtzhausen recorded that on 3 January 2023 Ms Ditta had had a meeting with Watch Commander Knowler about the claimant’s “poor behaviour” at the meeting of 22 December 2022. Ms Ditta had gone on leave shortly after the incident and “didn’t at the time want to make anything of it”. SC Holtzhausen had asked WC Knowler to do a “quick fact find”, which appears to have involved asking some of those present for short email accounts which I will come to in a moment. SC Holtzhausen himself had had a “decent conversation” with Ms Ditta on 3 January. He recorded that Ms Ditta said her memory of the incident was not as good as she wanted it to be. She said that the claimant had a negative attitude from the start of the meeting. During the course of the conversation about the fire the claimant “made a derogatory comment toward this woman, in which Anna alluded to as misogynistic and with a sexual reference. She smacked the table with her leaflets and firmly said to CC Langton that’s enough.”

[23]I accept that SC Holtzhausen’s email must broadly reflect what Ms Ditta had told him. I do not accept the submission made on behalf of the claimant that Ms Ditta’s initial reluctance to make a complaint proves that the claimant had not really said anything offensive. The reasons that a woman may not seek to formally complain about what she sees as unacceptable behaviour by her male colleagues in the workplace are so many and varied, and more significantly so obvious, that I do not see the need to set them out here.

[24]On 6 January 2023, Group Commander Stuart Grosse was nominated to conduct an investigation into the events of 22 December. He delivered a letter to the claimant’s home, explaining that the claimant would be subject to a formal investigation into an allegation that he had made “misogynistic and sexualised comments” on 22 December about the casualty in front of his watch and colleagues present from another department. The claimant was suspended from duty and told that he should not make contact with any colleague who could be involved as a witness.

[25]During the course of the investigation GC Grosse and his colleagues took witness statements from a number of people present on 22 December, including the claimant. The statements consisted of transcripts of conversations with the witnesses, which were then signed as true records by the witness and the investigator/interviewer. Where I refer below to “statements” these are what I mean. (In contrast to “witness statements” prepared for these Tribunal proceedings. I only saw witness statements, and heard oral evidence, from AC Bell and the claimant.) No issue was taken during the course of this case about the accuracy of the transcripts. The interviews took place in early or mid January and were signed off by the witnesses towards the end of January. It may be that there were people present on 22 December who did not provide statements to the respondent, but if that was the case no criticism of that was made on behalf of the claimant. The accounts of the complainant

[26]In an email of 5 January Ms Ditta provided further detail: [The claimant] referred to the woman (casualty) and her age telling the group she looked old/haggard for her age in an inappropriate way. I heard one of the crew challenge him at this time. I heard him to be utterly disrespectful about her being a woman, and also a casualty, and in a degrading way. At this point I directly told Pete that he was not talking about her in “an ok way” and to stop, which was when he muttered something of a sexual nature (such as “even I wouldn’t”, but stress I cannot remember exactly what the words were). I did become cross at what he had said and used a leaflet to firmly tap the table and say “Pete that is enough” with a very firm voice.

[27]Ms Ditta also recorded that her new colleague Ms Wade had been stunned by the claimant’s behaviour. Ms Ditta said that she had hoped to return from leave to an apology message from the claimant but did not receive one.

[28]In her later statement Ms Ditta gave further detail about the claimant’s negative behaviour or “dark mood” during the meeting. During the course of the conversation about the incident the claimant “began to be very judgemental of the woman – why was she still in bed? she looked old for her age, she looked terrible etc.” Another firefighter had observed that in the circumstances she was not going to look her best and Ms Ditta began to challenge the claimant about his comments and the claimant said something else under his breath. When asked she said that there was no “banter” of any kind that may have encouraged the claimant to say what he did. She said that the claimant had not apologised to her. She did not consider the claimant’s behaviour to be out of character as she found him to be “inconsistent” – he would either be on top form or completely down on the world. (To be clear, she was not suggesting that the claimant had ever said anything similar before.)

[29]I record at this point that in the course of cross-examination AC Bell agreed that the respondent had eventually found that there was not sufficient evidence to conclude that the claimant had made the offensive comment under his breath referred to above. Given that Ms Wade, as I will explain in a moment, also said that the claimant had said something under his breath, albeit that she had not heard it, it would in my judgment have been reasonable for AC Bell to have concluded that a comment along the lines of what Ms Ditta said she heard had been made – a witness might often remember the gist of what was said without recalling the exact words. However, it was equally reasonable for AC Bell to have taken the view that he did and given that view I do not take any account of the “under the breath comments” in considering whether the dismissal was unfair. The accounts of others

[30]Ms Wade’s initial email of 5 January said that the claimant had made “disrespectful comments” about the casualty. She recalled a comment about the casualty’s age but did not remember what else was said. Ms Wade’s later statement said that the claimant had made comments on how bad the casualty looked, then another firefighter had said that she was unlikely to look her best in the circumstances. When asked whether the claimant’s comments were about the casualty’s appearance, she said: “Yes, he made comments like ‘she was meant to be 30 but she looked way older than that’. He then muttered something else about her but I didn’t hear what it was he said. That was when [Ms Ditta] reacted the way she did.”

[31]Firefighter Acres was also present at the meeting. His 5 January email said that the claimant had made comments about the casualty that could be seen as offensive. Ms Ditta immediately addressed the remarks and told the claimant that they were unacceptable. In his later statement FF Acres said that in one of the more casual parts of the meeting they had discussed the fire. The casualty had been in a fairly bad way. They spoke about the fire for a few minutes and during the conversation the claimant began to make comments about the casualty which were quite offensive. He could not remember the exact words but generally they were negative comments about the casualty’s appearance. When asked whether the comments were derogatory he replied yes, about her appearance. As soon the claimant said it Ms Ditta instantly picked him up for it. She was “notably upset” by the comments. When asked whether the claimant’s behaviour that day was out of character he said yes, it was an exceptionally miserable day for him.

[32]Firefighter McIntyre was another present. His 5 January email recorded that the claimant had recently found out that he had failed the WCDC and was “understandably quite down about it”. He vaguely remembered Ms Ditta reprimanding the claimant for something, but he was not sure what the claimant had said. In his statement he added that the comments the claimant made had been about the casualty. He could not remember the exact words but he thought it was something about her “not being the most attractive woman in the world”, “something along those lines” He remembered thinking at the time “please be quiet”.

[33]Firefighter Jordan Coughlan does not appear to have provided the initial email that the others did, but did provide a statement. FF Coughlan recalled Ms Ditta asking the claimant about the fire, but did not recall “that he did or did not say anything misogynistic”. The rest of the meeting was pretty good and it didn’t feel like it ended on bad terms. When asked directly about a moment where Ms Ditta got quite angry and upset and slammed the leaflet down on the table, FF Coughlan did not recall such a moment. FF Coughlan had not really been paying attention to all of the meeting and could not say there was definitely nothing inappropriate said.

[34]A statement for the investigation was also provided by Watch Commander Knowler, who was not at the meeting of 22 December. It will be recalled that WC Knowler was the claimant’s line manager and had done the 2022 Performance and Development Pack with him. WC Knowler was asked to tell the interviewer about the positives and negatives of the claimant’s attitude and behaviour and anything else that might be relevant to the events of 22 December. WC Knowler said that he had concerns about the claimant’s leadership ability in the sense that he could manage but not lead. He had arranged an informal meeting on 8 October to discuss his concerns with the claimant. He set out the details of the October email which I summarise above at paragraph 14.

[35]Shortly after his interview for the investigation, WC Knowler emailed GC Gross about something he had forgotten to say. WC Knowler referred to the claimant’s half-year appraisal on 29 November 2022 and his own positive comments about the claimant in that process. He said that the claimant was at the time being very helpful and “I decided to use this new found positivity as an opportunity to give him a big pat on the back and try a different approach with my management style. I felt I had previously carried out the ‘harsh’ approach and as I was starting to witness a change in him, I wanted to try and keep it going. Rightly or wrongly, I decided to give him a positive half year review, as I hoped this would continue to spur him on.” Despite the contents of this email, it seems more likely to me that WC Knowler meant what he said, at length, when he signed off the 2022 PDP. The claimant’s first account – 18/26 January 2023

[36]On 26 January 2023 the claimant signed the witness statement which, like the others, was essentially a transcript of an interview/conversation he had with GC Grosse on 18 January 2023. It had taken place in the presence of a union representative. After recalling what had happened at the start of the December meeting, the claimant was asked whether he was aware that he had upset and angered Ms Ditta. He said that he had been saying things in jest and it was never his intention to offend. He had made an off-the-cuff comment about no one in particular which in hindsight he should not have said, but everyone else laughed and saw the funny side. Ms Ditta had told him he shouldn’t have said it and he said he believed he apologised at the time but could not be certain. He said that they then then discussed things that they would say when they were younger and he made a comment that was not meant in a derogatory way. He made the comment, “one you would make about a woman in a club or on a night out”, Ms Ditta “said her bit” and the meeting carried on as normal. When asked how the incident came up in conversation, the claimant said that Ms Ditta had asked what shouts they had been on recently. The claimant mentioned the incident and said that the casualty had been wearing very little so he had requested a blanket to help her maintain her dignity. He then recalled being asked, he believed by Ms Ditta, whether the casualty was his type. He said that that then led to the comment because he thought it was all informal, it was meant as a joke and had come back around to bite him. When asked what the comment was, he said: “I used a term commonly used back in the day, when you’re on a night out and it was the end of the night, if you still haven’t got with anyone, it was called ‘pull a pig’.” Ms Ditta had told him that wasn’t nice, he replied “no it wasn’t very nice, but I’m sure that you have the same for the men that are left alone at the end of the night.” People laughed, including Ms Wade, but Ms Ditta became serious and said he shouldn’t make comments like that. He repeated that he believed he had said sorry at the time. He said he had not meant to be offensive but did now see how what he said could be construed as offensive. When asked whether he thought it was appropriate to be negative about the casualty’s appearance in the circumstances he said that his comment was not about the person in particular. The claimant was asked whether he had said “I wouldn’t fuck her” and he said he had not. None of the witnesses had actually said the claimant said that, but presumably the questioner had in mind what Ms Ditta had said the claimant had said under his breath. At the conclusion of the interview the claimant said that he would like to apologise to all involved – Ms Ditta, Ms Wade and his watch. It was not something he was proud of, he said.

[37]Two things emerge in in my judgment on a natural reading of what the claimant said here. First, in the early part of his account, the off-the-cuff comment which Ms Ditta told him he should not have said was followed by the “pull a pig” comment – “we then discussed things that we would say when we were younger….”., although a later part of his account, on page 5 of 10, reads as if the “pull a pig” comment was the only inappropriate comment he made. Second, whether or not it was about the casualty – and the claimant made clear his position that it was not – the “pull a pig” comment was made in the context of a discussion about her.

[38]I should also add that on the face of what the claimant said in the interview, it is not particularly clear how, on his account, he had come from being asked whether the casualty was his type to making the “pull a pig” comment. In the absence of any further questioning the most natural conclusion might be that that comment can only have been made in relation to the casualty. However in his evidence to me the claimant said that, when asked whether the casualty was his type, he had actually explained that he was “never one who was lucky with the ladies” and his type was more the women that he would approach at the end of the night in a club when the lights came on; he had then recalled this being referred to “back in the day” as “pull a pig”. On that basis it is easier to see how on the claimant’s account the “pull a pig” comment – wholly inappropriate as it undoubtedly was, assuming for the moment that it was said – was not a direct reference to the casualty’s physical appearance. But as I say, that only became clear when I asked the claimant about it in evidence. The investigation report – January 2023

[39]Group Commander Grosse’s report, dated 31 January 2023, considered, amongst other things, the emails and statements, the 2017 file note, the PDPs and the October email I have summarised above. Under the heading “Facts Established”, the report said:a. Statements say that the claimant described the casualty “in an inappropriate manner”. The claimant’s comments were around the casualty’s appearance.

b. Only Ms Ditta heard the comment along the lines of “even I wouldn’t”.

c. The claimant admitted in his own statement to calling the casualty “a pig, using the analogy of ‘pulling a pig’ at the end of a night in a club”.

d. [After an accurate summary of what the claimant had said about Ms Ditta’s reaction to his comment.] Although the claimant had said everyone laughed, there was no evidence of this. The claimant had accepted that he could see why his remark would be construed as offensive but said that it was off-the-cuff with no intention to offend.

[40]Although the above was included under the heading “Facts Established”, it was more of a summary of the evidence. Under that heading, GC Grosse did not set out any explicit conclusions on what the claimant had actually said. In the context of remarks in a different section of the report (see below) it does seem likely that the line about the claimant’s comments being “around the woman’s appearance” was a conclusion. It might also be said that it is implied that GC Grosse believed the claimant had made the “pull a pig” comment and that it had been about the casualty, but that was not explicitly stated.

[41]As will be clear, point (c) above was not correct – the claimant always denied that the comment was about the casualty, although given what the claimant did say in his statement/interview it is easy to see how GC Grosse fell into that error. As I have said it was a natural inference on the face of the statement that – whatever his explicit denials – the claimant must have been talking about the casualty, but as I have explained above, that inference was not so natural upon my own short questioning of the claimant, and I note that GC Grosse himself had conducted the interview with the claimant.

[42]Under the heading “Facts that could not be established” GC Grosse found that the “even I wouldn’t” remark “had not been proven”. Under the heading “Inconsistencies” GC Grosse said that he had discounted FF Coughlan’s statement to the effect that he heard nothing untoward, “[b]ased on the fact that all other witness are firm in their statements that [the claimant] was negative and said something inappropriate”. Reading the report as a whole, then, it is clear that GC Grosse concluded that the claimant had in fact said “something inappropriate”. From the context it is also clear the GC Grosse must also have accepted that what was said related to the casualty’s appearance.

[43]Under the heading “Mitigating Factors” GC Grosse recorded that the claimant “uses his failure of the WCDC as a mitigating factor for his behaviour”, providing further detail about that. GC Grosse said that he did not accept that as a mitigating factor as the claimant had been told about the failure 6 days before the meeting. GC Grosse also noted (correctly, although I have not summarised it above) that in his interview the claimant explained that he had been under pressure of work and had not been well at the time. GC Grosse did not accept the latter as mitigation as the claimant did not go off sick until eight days after the meeting. It is unclear to me why GC Grosse considered it was part of his role to decide what factors did properly amount to mitigation.

[44]GC Grosse included information about the 2017 file note, the PDPs and the October email under the following heading: “As part of the investigation process, the IO has asked questions to established PL’s working competency.” Given the terms of reference – which were essentially to investigate the 22 December incident – it is not clear why GC Grosse chose to widen the scope of his enquiry to include those other matters in what was a conduct, not a competency, investigation. (GC Grosse was not a witness in these proceedings so I do not know what he would say about that.) Although the issues had been raised by WC Knowler in his statement, and there is a “catch all” in the terms of reference which appears to be intended to say that any other matters of misconduct which emerged during the investigation might also themselves be investigated, it is hard to see how the file note etc. could be relevant to anything other than what the appropriate penalty should be were the principal allegation found to be made out (and in that regard, the terms of reference specify that recommendations should be included as to whether to take no further action, deal with the matter on a informal basis or initiate a full disciplinary hearing – there was no request to make recommendations as to the appropriate penalty if the conduct were made out).

[45]Under the heading “Conclusion”, GC Grosse said that there were two specific “areas of concern highlighted by the investigation”. The first area of concern was that the claimant “did use a derogatory and misogynistic term when describing the appearance of a casualty”. Reading the report as a whole, it seems clear that this was intended as a conclusion rather than merely as the “charge” that should be considered at a disciplinary hearing; in a later part of the report it says that “the IO [Investigation Officer] believes that the claimant had displayed behaviour that had did not meet the applicable standards”, which were set out at some length. The second area of concern identified by GC Grosse’s report was that in the 22 December meeting the claimant “display[ed] negative and disruptive personal and leadership behaviours”. This second point appears to relate to the claimant’s behaviour in the meeting before he was said to have made the offensive comment(s). GC Grosse’s ultimate recommendation was that a full disciplinary hearing should take place. The claimant was written to on 9 February 2023 and informed about that.

[46]At the end of his report GC Grosse recorded the following: It has been said to the IO during the investigation, on multiple times and across all levels of the Service, including male and female, operational and non operational staff “you have to know your audience”. This cannot be an acceptable statement used within BFRS, as it can be used to excuse behaviour in a group/team/or Watch setting where the individual feels comfortable enough to express unacceptable behaviour. The Service needs to define where and what level of tolerance is acceptable for behaviour standards and communication, so that our staff can challenge unacceptable behaviour. The Service should consider how they will educate and communicate this to all levels of the Service Plainly if the respondent did have a zero-tolerance policy, it had not communicated that to its employees. The disciplinary hearing

[47]The disciplinary hearing was conducted on 27 February 2023 by Area Commander Bell. Although in the claimant’s witness statement he had expressed some concerns about his past dealings with AC Bell, that was not pursued as part of his case before me so I say no more about it.

[48]I was shown a transcript or minutes of the hearing. No issue was taken with the accuracy of the document. GC Grosse presented the management case, along the lines of his report. He was somewhat clearer than he had been in his report in the sense that he said that “based on weight of evidence” he had found that the claimant was “judgmental of the casualty’s appearance”. He found the “under the breath” comment not to have been proven, but said the evidence showed that the claimant did “make comments about the casualty’s appearance and that these were inappropriate”. The claimant, he said, had admitted calling the casualty a pig (as to the inaccuracy of that statement, see para 41 above). GC Grosse set out brief details relating to the October meeting and email, the 2017 file note and the 2020 PDP. He set out the claimant’s mitigation points (along with his own observations as I have set them out above). He then set out the investigation’s conclusions: [1] That CC Langton did use a derogatory and misogynistic term when describing the appearance of a casualty. The term was used in front of BFRS staff that he is a leader and manager of, and also BFRS staff who are new to the organisation, where he should have been setting the required example of behaviour. [2] That CC Langton did, in a priority pre HMICFRS meeting, display negative and disruptive personal and leadership behaviours that are far below the standards that which would be expected of an employee, professional firefighter, manager and leader within BFRS.

[49]GC Grosse then set out parts of the various professional and disciplinary codes which were breached by that behaviour. AC Bell asked some questions of GC Grosse, including what had been the “trigger” for the 2020 PDP; the reply was that it was water safety but he did not know the “full trigger” as the managers had left. He also asked whether there was any corroboration of the claimant’s evidence that Ms Ditta had asked him if the casualty was his type. The (correct) answer was no. In answer to a question from the claimant’s union representative, GC Grosse said that the PDP may have been “triggered by an activity”.

[50]The claimant was then invited to present his response. He apologised for the comment which he said was taken out of context and was out of character. It should not have been said however he did accept that he said it. He said that he had apologised at the time. He said that the “pull a pig” comment had not been made about the casualty and that the conversation had moved on at the time he made the comment. (Note the contradiction here with his earlier account, that he had made the comment in response to being asked whether the casualty was his type.) He said that the pull a pig comment was the only comment he made. He accepted the comment did not fit in with the respondent’s vision and values. He said that he had not yet been on learning and management training, this was not an excuse, but he was open to any training he might be required to do. He wanted to apologise to Ms Ditta and Ms Wade, would have apologised on the day had he known offence had been caused. (Note the further contradiction here with his earlier assertion that he had apologised immediately after having made the comment.) He did not believe that he had exhibited a negative manner on 22 December but he was upset about having failed the WCDC. He did not remember much about the PDP but he thought it was about water awareness. He said that in the October 2022 meeting, which he had not realised was a professional (I think he meant formal) conversation, his line manager had said he felt he didn’t back him, but they had only worked together for a month at that point. He pointed out that a month later he had been appraised as a high performer.

[51]The claimant was then asked some questions by AC Bell. AC Bell reminded the claimant about the firefighters’ statements that he had made an offensive comment and asked whether he could recall what it was. The claimant said that there were comments about the casualty being put on the floor in her pyjamas and that they needed to get a blanket for her dignity. He later said that he did not remember making the comment about the casualty. He was asked about an earlier comment he had made about losing his rag but he said what he meant was that he wore his heart on his sleeve. The parties then made brief arguments in summing up.

[52]AC Bell said that he would take a break between 12.30 and 2 pm to consider the matter. He asked the claimant’s union representative to go and see the claimant and said that after the adjournment he would be asking the claimant to be honest about what was discussed at the meeting on 22 December. I note the clear implication here that AC Bell had already decided by this point that the claimant was not telling the whole truth. This was not a particular point raised by the claimant during the course of the Tribunal proceedings, no doubt because AC Bell had by this point already heard the evidence and submissions and so would have been perfectly entitled to have formed a preliminary view.

[53]When the hearing resumed AC Bell told the claimant that he wanted to revisit what happened on 22 December. He wanted the claimant to be honest, wanted to give him one more opportunity to shed some light on the matter that he felt the claimant had been evasive on. He pointed out that four out of five witnesses had said the claimant had made offensive comments about the casualty and that nobody other than the claimant had said anything about comments about a nightclub (i.e. the “pull a pig” comments). The claimant repeated that he did not remember making a comment but conceded he had obviously said something. He continued: “words I used I don’t remember, the only thing I can think of is she was wearing [pyjamas] and how she looked at that the time in the morning […] I don’t remember, I must have said something, I don’t remember talking about her appearance at the meeting.” He did not remember making a derogatory comment and could only apologise for whatever he said. AC Bell’s reply was: “All I have heard today is excuse[s] about your behaviour, you have tried to mirror the behaviour on others. We suspended you, haven’t trained you, you didn’t understand about the 121 meeting with WC, it is Anna’s fault about the DC, the note for file you didn’t agree with, the PDP you didn’t read, excuses and I am struggling to reconcile the history. The allegations, level of corroborating evidence and a response, nowhere in your appraisal does it say you need training on behaviours and you filled it in”. Insofar as AC Bell was suggesting that the claimant had sought to excuse his behaviour by lack of training, that was not in my judgment a fair characterisation of what the claimant had actually said. The claimant had merely suggested training as a potential sanction, on the basis that he had not had it. Nor do I see that the claimant taking issue about the October meeting, the file note, or the PDP could fairly be characterised as him making excuses for his behaviour on 22 December 2022. AC Bell then said “Nothing has changed since 2017, 2020 and 2022”. The claimant replied that the appraisal says that he did change. AC Bell replied: “Clearly didn’t as since then the behaviour hasn’t aligned to any change” and said that the October meeting had clearly had little effect. The decision

[54]After a further adjournment AC Bell returned to deliver his decision. He said the matter had consumed a considerable amount of time and effort on the part of the respondent’s managers which could so easily have been avoided and could not be disregarded. AC Bell was not asked about that in cross-examination. It is unclear to me why AC Bell should have taken that into account. Clearly any disciplinary procedure requires an investigation and no suggestion was made to me that the procedure could have been shortened even had the claimant admitted everything in his interview – the witnesses were interviewed before he was. But the sentence has something of the ring of a proforma about it (indeed I notice a similar form of words used in AC Bell’s decision about Firefighter A [see below]) and on that basis I do not consider that it had a material bearing on the decision to dismiss.

[55]As to the substantive point, AC Bell said: With regards to the matter of the misogynistic and sexualised comments about a female victim of fire, made by yourself during a meeting on 22 December 2022, throughout the hearing you have made numerous attempts to deflect from having said these comments, focusing on another inappropriate comment which you believed colleagues present at the meeting would find funny. … Four out of the five witnesses have made statements with the effect that during the meeting on 22 December 2022 you made offensive comments about a victim of fire. Yet your only response is you can’t remember, and you are sorry if you said anything offensive.

[56]AC Bell went on to say that in mitigation the claimant had tried to excuse his behaviour by saying it was influenced by lack of training, the lack of an immediate and detailed response [i.e. feedback] to the WCDC outcome. None of that was in my judgment a fair characterisation of what the claimant had actually said. AC Bell referred to the 2017 file note and said that in 2020 the claimant had been “given a PDP” which had raised concerns about his behaviour and conduct. He then referred to the October meeting where concerns about his performance and behaviour had been raised; that meeting had taken place two months before 22 December 2022. He went on to say: “Your behaviours on the 22nd December 2022 are not isolated and that there is little if any evidence that previous interventions have had any bearing on changing your behaviours.”

[57]AC Bell pointed out, quite fairly, that the claimant was in a position where he was expected to be a role model and to display the highest standards of professionalism. He concluded that the claimant’s conduct and behaviour was far below that which was expected. He continued: “I have considered all the sanctions available to me today and taken into account the absence of any convincing ownership for something that you can’t recall and another statement (reference to the term pig) that you have tried to justify.” He told the claimant he would be summarily dismissed and explained his right to appeal.

[58]A letter confirming the result of the appeal was sent to the claimant on 1 March 2023. The allegation was summarised thus: “It was alleged you made misogynistic and sexualised comments about a female member of the pubic that was a victim of fire”. AC Bell repeated the comment he had made in the meeting about the time and effort expended by managers. He then wrote: With regards to the matter of the misogynistic and sexualised comments about [the casualty] throughout the discipline hearing you made numerous attempts to deflect from having said these comments, focusing on another inappropriate comment which you believed colleagues present at the meeting would find funny. During the hearing, you were given every opportunity to state your case, and on three occasions were given the opportunity to consider and respond to the allegations that you made derogatory/offensive comments [...] Your response was that you could not remember and were sorry if you said anything offensive.

[59]AC Bell then repeated the remarks he had made orally about the claimant’s mitigation/excuses, the behaviour not being isolated and there being little if any evidence that previous interventions had changed as behaviour. He said that the claimant’s behaviour and actions fell far below that which was expected. He continued: I considered all the sanctions available to me and took into account the absence of any convincing ownership for something that you claim you cannot recall and another statement, where you tried to justify the use and terminology of referring to women in a nightclub as “pulling a pig”. Your behaviour has brought the reputation of this Service and yourself into disrepute and you have shown a complete failure to meet the expected standards of behaviour. The remainder of the letter dealt with the formalities of the summary dismissal. What did the respondent think the claimant had said?

[60]I note the absence of a finding at this point (nor indeed at any other point in the investigation or disciplinary process) about what the claimant actually said. I will use the term “age/appearance comments” to refer to what Ms Ditta and the other witnesses recalled the claimant saying, in contrast to the “’pull a pig comment’” which the claimant alone described. As set out in the dismissal letter, AC Bell considered that that claimant had used “misogynistic and sexualised comments” about the casualty. It is clear from the way the letter is phrased that this description referred to the age/appearance comments, and did not encompass, or at least did not only encompass, the “pull a pig” comment, as the description “misogynistic and sexualised comments” is followed by “you made numerous attempts to deflect from having said these comments, focusing on another inappropriate comment which you believed colleagues present at the meeting would find funny.” In his witness statement for these Tribunal proceedings, AC Bell said that he had believed that the claimant had made “misogynistic and sexualised comments” about the casualty, albeit recognising that the witnesses’ recollections were not identical, making the reasonable point that that is often the case. He similarly made clear in his oral evidence that he based his decision on all but one witness saying the claimant had made “offensive sexualised comments”, further clarifying that the comments were derogatory, about a female and were specific to her age and appearance, which was entirely unacceptable. In his written evidence he said that he considered what the claimant had said to amount to gross misconduct.

[61]Clearly AC Bell also believed that the claimant had tried to deflect from the age/appearance comments by focussing on the “pull a pig” comment. In my judgment it was open to him to come to such a view. He also concluded that the claimant sought to “justify” the use of the term. I think it most likely that by “justify” here, AC Bell was referring to the claimant suggesting the “pull a pig” comments had been made in response to being asked whether the casualty was his type. Although AC Bell made no explicit finding about it, it is evident that he was somewhat sceptical about whether anyone had asked the claimant that, having asked whether anyone else corroborated the claimant’s account on the point. While it would have been open to AC Bell to go back to Ms Ditta and the other witnesses to ask about that (or indeed about whether the claimant made the “pull a pig” comment) I consider it was reasonable for him not to have done so. The witnesses had already given their accounts of the incident in some detail in response to mostly open questions and, as I have already noted, Ms Ditta had specifically said that there was nothing said which might have encouraged the claimant to have said what he did.

[62]It is not clear on the face of the written decision whether AC Bell found that the “pull a pig” comment had actually been made or, if so, whether AC Bell considered it to have been made directly about the casualty. In the letter, he described the claimant as in his statement “trying to justify… referring to women in a nightclub as ‘pulling a pig’”. That particular passage suggests that AC Bell did not think the claimant was referring directly to the casualty, but other evidence suggests differently, i.e. that AC Bell believed that the “pull a pig” comment had been about the casualty rather than merely in a conversation about her. AC Bell’s witness statement was unequivocal: “based on his own investigation interview, I believed that on 22 December 2022, Mr Langton referred to the member of the public as “a pig”. In the context, AC Bell was not saying that the claimant directly called the casualty a pig, but clearly he did think that the “pull a pig” comment was about her, and that the claimant had admitted as much. Indeed, the assertion that the claimant had admitted describing the casualty as a pig at the investigation stage appeared three times in AC Bell’s witness statement, and at paragraph 21 of the statement AC Bell distinguished that (incorrectly characterised) position with the claimant’s position in the disciplinary hearing that the comment had not been made about the casualty. In cross-examination AC Bell did eventually accept some confusion on his part and did accept that the claimant had in fact denied throughout the process that the “pull a pig” comment was about the casualty. He did accept that the misconception (my choice of word, not his) was part of his decision to dismiss, albeit one of many factors. AC Bell also said in his statement that he took the view that Ms Ditta and Ms Wade’s statements corroborated the claimant’s admissions that the “pull a pig” comment had been about the casualty. Given that neither witness said anything about such a comment, that simply cannot be right. On balance, I conclude that that AC Bell believed that:(i) the claimant had made the “pull a pig” comment

(ii) the comment had been about the casualty and

(iii) that the claimant had admitted as much at the investigation stage but was now rowing back from that. For the reasons I have already set out, conclusions (ii) and (iii) were not justified. However, conclusions that the “pull a pig” comment had been used in the context of a discussion about the casualty, even if it was a direct reference to other women rather than the casualty, and that the conversation had not “moved” on, would have been entirely justified. For the reasons I consider later, that view of events may not have been much better for the claimant than AC Bell’s erroneous view. Other factors taken into account, and not taken into account, by AC Bell

[63]AC Bell does not explicitly say so in his reasons, but it seems to me he based his decision on the claimant’s remarks about the casualty rather than also on the claimant’s “negative” behaviour in the meeting before those remarks were made, since he makes no reference to the latter in his oral or written reasons. In cross-examination, AC Bell made clear that he had accepted GC Grosse’s finding that the “under the breath” comments had not been made, so that too was clearly something that did not influence the decision to dismiss.

[64]AC Bell’s witness statement says that he balanced the mitigation offered, including the character references (see below), against the information relating to the 2017 file note and the PDPs. He did not accept that the claimant was ill or under pressure. He thought that the apology he offered only came after a complaint was raised (this seems a perfectly reasonable conclusion). AC Bell “did not consider that any meaningful or tangible mitigation was offered or identified that explained or excused the comments made by Mr Langton.” He had considered options short of dismissal but did not consider that the claimant was “taking full accountability for his actions particularly because of the shift in his account between the investigation and the disciplinary hearing”. Although I have identified two such shifts above, the only such shift explicitly referred to in AC Bell’s statement is his erroneous belief that the claimant had changed his position on whether the “pull a pig” comments were about the casualty. When asked to identify others under cross-examination, he said that he would have to look back through the bundle. It seems to me that the erroneous belief had a material impact upon his decision to dismiss the claimant, though I accept that it was not the only factor.

[65]AC Bell’s witness statement also says that he was not convinced that a similar incident might not occur again, as despite “prior interventions”, concern about the claimant’s behaviour persisted. The statement also says that AC Bell had considered the claimant’s length of service and the point that due to his seniority and management role he should be held to a higher standard. He summarised the position as follows: Based on the severity of the offence, how far it sat outside of our Values and Code of Conduct, the limited amount of ownership and recognition to the scale, impact and offensiveness of the comments he made. Given prior concerns and attempts at intervention regarding Mr Langton’s behaviour, I was not convinced that a lesser sanction would prevent similar behaviour in future. In all the circumstances, [I] genuinely believed the most appropriate decision was to dismiss Mr Langton

[66]The claimant had provided positive character references from eight colleagues, two of whom were female. Each made clear that they had experience working with the claimant and had been treated well by him. Four explicitly said that the claimant had never said anything sexist in their presence. AC Bell made no explicit mention of the character references in either his oral or written reasons for the decision to dismiss, though it is correct to say that they were referred to (by the claimant’s representative) during the hearing. I do accept AC Bell’s evidence that he was aware of those things and did take them into account, though given his approach to them when asked in cross-examination, I conclude that he did not give them much weight. For example, he took issue with how much time one of the character witnesses would have spent with the claimant in the face of the clear statement that they had done many shifts together. Appeal

[67]The claimant appealed on the ground that that the sanction was too severe for the misdemeanour concerned. An appeal hearing took place in which AC Bell presented the management case after the claimant’s representative had presented his case. As with the original hearing, I was provided with a transcript that was not disputed.

[68]It was suggested at the appeal on the claimant’s behalf that the sanction was too harsh. Six days before the meeting he had been told that he had been unsuccessful at the WCDC and he was coming down with an illness. He disputed the relevance of the file note. He had provided character references and had no formal sanctions on his record. The “PDP for water awareness was taken out of context, this was for the practical application of water skills. PL believes most individuals got this PDP due to a lack of training on the watch. Too much weight was given to this.” The claimant read out a statement in which he repeated his apology and his assertion that he could not remember what comment he had made. In his reply, AC Bell said that “The investigation and hearing process established that PL did make misogynistic, derogatory, and offensive comments about a female victim of fire.” He said that he considered the claimant to have been deflecting by focussing on the pig comment. I note that he said, correctly, that the claimant had admitted using the word pig and did not repeat the earlier error that the claimant had admitted he was referring to the casualty when he said that. There was however no recognition of the fact that the error had been made at the original hearing. AC Bell set out most of the other detail I have set out above, and also referred to the claimant’s 20 years of service.

[69]The claimant was provided with a written decision which upheld the original decision: It is clear to me that your conduct, behaviour and actions fell far below that expected of an employee of the Service, particularly as you were in a managerial role… The comments you made related to a member of the public who was in an extremely vulnerable state, and clearly caused offence and has had a lasting effect on others present at the meeting. Members of the public whom we are trusted to serve and protect deserve better. Nothing I heard suggested to me that the decision reached was anything but proportionate and within the range of reasonable responses in respect of your behaviour…

[70]What it was the claimant had actually said was not discussed during the appeal hearing, nor was it dealt with in the written reasons for dismissing the appeal. Other points

[71]Aside from the points I have already considered, no criticism was made of the procedures adopted by the respondent in either the disciplinary or appeal processes. The claimant was clearly given sufficient notice of the processes, he was provided with the evidence in advance, he was accompanied by a union representative at all times, etc. Although in his statement the claimant had mentioned that the process took somewhat longer than the timescale set out in the respondent’s policies, that point was sensibly not referred to in the Tribunal proceedings. There does not appear to me to be any valid criticism of the length of time that AC Bell took during the hearing to make his decision.

[72]No particular criticism was made of any particular aspect of the appeal. Rather, the claimant’s broad contention was that the appeal failed to cure whatever unfairness there was in the original decision, being based essentially on the same information. I deal with this point below. The comparator incident

[73]I was shown an outcome letter and an investigation report relating to a firefighter whom I shall call simply A, employed by the respondent at a different fire station. In short, A was said to have been resentful about a female firefighter whom I shall call B, who was promoted instead of him. A was found to have made remarks both to B and to his station commander which conveyed that resentment in no uncertain terms, which was found to have been “negative and unprofessional behaviour”. The report made no suggestion of sexism or misogyny. A’s disciplinary hearing was conducted by AC Bell. It is not particularly clear on the face of the outcome letter what it is that A was found to have done, but it did refer to A marginalising B. In his oral evidence AC Bell said that as well as the negative comments, A had, separately, excluded B from a WhatsApp group in which work matters were discussed. The letter does explicitly recognise A’s previous good conduct and service and the extent of the remorse that A had shown. The penalty imposed was, I agree with AC Bell’s characterisation, only just short of dismissal. A was given a final written warning and demoted to the rank of firefighter. He could only be promoted again if he re-took the WCDC process. There were no conclusions reached that the behaviour of A was in any way connected with B’s sex. On that basis I do not regard the facts of A’s case to be sufficiently similar to the claimant’s case as to warrant it being used as a sort of comparator, as the claimant invited me to do, to allow me to conclude that there was inconsistent treatment which contributed to the unfairness of the claimant’s dismissal. The case is of some limited use in that it illustrates what sanctions short of dismissal might have been available in the claimant’s case. The claimant’s account in these proceedings

[74]In the claim form the claimant asserted that Ms Ditta had asked him if the casualty was his type and he had said no, he was more the kind of guy who used to end up with the women who were left at the end of the night when the lights came on at nightclub and that “back in the day” they used to refer to this as “pull a pig time”. Ms Ditta had said she did not like this comment and he had apologised.

[75]The claimant’s statement for these Tribunal proceedings does not give a direct account of what he did and did not say in the 22 December meeting. It does however relate what the claimant recalled telling GC Grosse in the interview and then AC Bell in the disciplinary hearing. The claimant recalled: “I denied ever making any such comment. … I was asked many times and in various different ways what comment I had made … but my answer remained the same, I did not make any comment… [T]here was no chance that I would ever make any sexist/misogynistic comment.” He recalled saying in the disciplinary hearing that when Ms Ditta asked him if the casualty was his type and then whether “he would”, he had ignored the former and replied to the latter that he did not see her like that and had not even contemplated anything like that. Then something else was said and a few people were talking at the same time, when out of nowhere Ms Ditta banged the table and said that we shouldn’t talk like that. “I repeated [in the hearing] that I did not say anything or make any comment about this.” The statement makes no mention at all of the “pull a pig” comments and the claimant did not in fact say what I have italicised above in the investigation or disciplinary hearings.

[76]In his oral evidence the claimant said that he did not remember making a comment about the casualty’s age or about her not being attractive; he agreed with Mr O’Keefe’s suggestion that any such comment would have been utterly outrageous. He denied that he had made a misogynistic comment. It was put to him that he made a derogatory sexist comment about the casualty’s appearance, namely that she looked old for her age or haggard or unattractive, or that he referred to her as a pig. It was suggested that he lied when he said that the conversation had moved on by the time he made the “pull a pig” comment and that he had made up a story in relation to his comments about nightclubs when he was young. The claimant maintained that he did not remember making any derogatory comment about the casualty’s appearance; in answer to my question he clarified that he was saying he did not remember whether or not he had, rather than denying that he had. He accepted that Ms Ditta had either verbally or with her hands made clear that she was unhappy with whatever he had said. My findings about what the claimant said on 22 December 2022

[77]For the reasons which I set out below, my ultimate conclusion is that the claimant was unfairly dismissed. Having so found, it is necessary for me to go on to make factual findings about what in fact the claimant did say on 22 December, since such findings are necessary in order for me to reach a conclusion on whether and to what extent the claimant was responsible for his own dismissal. I stress that these findings were not relevant to my initial decision about whether the claimant was unfairly dismissed and they played no part in that decision.

[78]The claimant was of course the only person present on 22 December 2022 from whom I heard sworn evidence. The statements of others, prepared for the disciplinary proceedings and not subjected to cross-examination, will inevitably carry less weight than sworn evidence. I take account of that, and of the fact that none of the witnesses recalled the claimant using precisely the same words. Some recalled the comments being about age, some about appearance, and some both. But none was purporting to recall every comment made by the claimant – they were sometimes relaying6 the gist of the remarks and other times recalling one of a number of remarks. So when I refer to the age/appearance comments, I use the plural deliberately. I take account also of the inconsistencies in the claimant’s initial accounts, about whether or not he made comments before the “pull a pig” comment, and the lack of any explicit denial in his sworn evidence that he made the age/appearance comments (as opposed to simply saying, as he did, that he could not remember). In considering the “pull a pig” comment, although nobody else appears to recall it, I take account of what I think is an uncontroversial proposition that an admission made by a witness against their own interest is likely to be true.

[79]Taking account of all of that, I consider the following to be more likely than not. The claimant made inappropriate remarks (plural) about the casualty’s age and appearance. These included that the casualty looked old for her age and looked bad, i.e. unattractive. It is not possible to be more precise about the words used, but the remarks were sufficiently offensive to have caused offence and embarrassment to at least two of those present. I accept that somebody said something like “was she your type” to the claimant but I do not accept – since the claimant himself seemed unsure when he first related it – that it was Ms Ditta that said it. The question was most likely a sarcastic rebuke to the claimant’s inappropriate remarks about the casualty’s age and appearance. The claimant then went on to say that he was more the kind of guy who used to end up with the women who were left at the end of the night when the lights came on at nightclub and that “back in the day” they used to refer to this as “pull a pig time”. Some in the meeting may have laughed, but that does not mean that any considered the claimant’s comments to be acceptable, nor that the claimant had any reason to believe that the comments were acceptable in the context of the conversation. I do not accept that the claimant apologised to Ms Ditta at the time – the claimant seemed unsure about that at the outset and nobody else recalls it. LAW Unfair dismissal and conduct

LAW

[80]Section 94 of the Employment Rights Act 1996 (“ERA”) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the employer (see s 95 ERA), but in this case the respondent admits that it dismissed the claimant.

[81]S 98 ERA deals with the fairness of dismissals in two stages. First, the employer must show that it had a potentially fair reason for the dismissal within section 98 (1) and (2). Second, if the employer shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.

[82]So far as the first stage of fairness is concerned, S 98 ERA provides, so far as is relevant:(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— … (b) relates to the conduct of the employee…

[83]So in this case it is for the respondent to prove that the principal reason for the claimant’s dismissal was conduct/misconduct (although in reality there was no issue about that – see below).

[84]The second stage of fairness is governed by s 98 (4) ERA: (4) … 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.

[85]In deciding fairness, I therefore must have regard to the reason shown by the respondent and to the resources etc. of the respondent. In general, the assessment of fairness must be governed by the band of reasonable responses test set out by the EAT in Iceland Frozen Foods Ltd v Jones

1983 ICR 17

. In applying s 98(4), it is not for me to substitute my judgment for that of the employer and to say what I would have done. Rather, I must determine whether in the particular circumstances of this case the decision to dismiss the claimant fell within the band of reasonable responses open to a reasonable employer.

[86]In a misconduct case, the Tribunal starts with the test set out by the EAT in British Home Stores Ltd v Burchell

1980 ICR 303

. Broadly, the question is whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. The considerations are whether the employer:a. believed the employee guilty of misconduct;

b. had in mind reasonable grounds upon which to sustain that belief; and

c. at the stage at which that belief was formed on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances.

[87]It is important to note that the Burchell test was formulated when the burden was on the employer to prove reasonableness – now that is no longer the case. The Burchell test also applies to the question whether it was reasonable for the employer to treat the reason as a sufficient reason to dismiss (although again the burden is not on the employer at that stage). In Sainsbury’s Supermarkets Ltd v Hitt

[2003] ICR 111

the Court of Appeal held that the range of reasonable responses approach applies to the conduct of investigations as much as it applies to other procedural and substantive aspects of the decision to dismiss for a conduct reason.

[88]By operation of s 207 Trade Union and Labour Relations (Consolidation) Act 1992, any failure to take account of the ACAS Code of Practice on Discipline and Grievance Procedures will be relevant to the issue of the fairness of the dismissal. It was not suggested to me (at least at this stage of the case) that there were any particular breaches of that code.

[89]It will also be relevant whether the employer followed their own procedures. Other points relevant to whether the employer acted within the band of reasonable responses may include: the nature of the allegations, the position of the employee and the size and resources of the employer. A meticulous investigation of the kind that would be done in a criminal enquiry is not required.

[90]There was no dispute between the parties about the fundamental legal principles which I should apply, and I was referred during the course of submissions to some of the above authorities. I was also referred to some other cases, which I now deal with by summarising the points the parties suggested I should take from them.

[91]While accepting that a substitution mindset must be avoided, Ms Harty took me to Newbound v Thames Water Utilities Ltd

[2015] IRLR 734

(at para 61), in which Bean LJ observed that the band of reasonable responses is not infinitely wide. In applying s 98(4)(b) an Employment Tribunal is not simply to engage in box-ticking, by which I take His Lordship to mean that the question is not simply whether all the right procedures were followed. Quoting the first instance judge, Employment Judge Bedeau, with approval, His Lordship said that an Employment Tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer.

[92]Ms Harty also relied on Strouthos v London Underground Limited

[2004] EWCA Civ 402

(para 31) for the proposition – which I accept – that an employee’s length of service is a factor which can properly be taken account when a Tribunal decides whether or not a decision to dismiss was appropriate. There was no suggestion, of course, that long previous service would necessarily make a decision to dismiss unfair. As Pill LJ said at the start of para 31 of that judgment, it all depends on the circumstances.

[93]Finally, Ms Harty relied upon Hewston v Office for Standards in Education, Children's Services and Skills

[2025] EWCA Civ 250

. At para 68 Underhill LJ found it hard, as a general proposition, to see how, in a case where the misconduct in itself was not of the kind which would justify dismissal, it would be reasonable for the employer to bump up the seriousness of the conduct only because the employee fails during the disciplinary process to show proper contrition or insight. In the next paragraph his Lordship went on to stress his use of the words “general proposition”, recognising that there may be particular cases where any distinction between the seriousness of the substantive conduct and the employee’s subsequent attitude is difficult to draw.

[94]For the respondent, Mr O’Keefe reminded me of Burchell and also referred me to Foley v Post Office

[2000] ICR 1283

, which deals with the principles in Burchell and Iceland which I have set out above. He also relied upon Paul v East Surrey District Health Authority

[1995] IRLR 305

, in which the Court of Appeal held that tribunals should scrutinise arguments based upon disparity with care (i.e. where a claimant argues that another employee in similar circumstances had been treated more leniently, thereby rendering their own dismissal unfair). An employer is entitled to take into account not only the nature of the conduct and the surrounding facts, but also any mitigating personal circumstances affecting the employee. The employee’s attitude to his conduct may be a relevant factor in deciding whether repetition is likely.

[95]Mr O’Keefe also referred to Look Ahead Housing and Care Ltd v Rudder

UKEAT/0163/10/JOJ

, a case about whether the employer had properly considered alternative sanctions to dismissal, in the context of the Tribunal having found and accepted that the respondent had a necessity for a zerotolerance policy. In my judgment the EAT’s decision turned on a narrow point of interpretation about whether a particular sentence indicated that the Tribunal had substituted its own view for the employer’s on the issue of whether alternative sanctions were properly considered. I do not consider that it establishes a particular proposition of law which assists me in this case, though it is no doubt a useful reminder that the band of reasonable responses test applies to the issue of what was the appropriate sanction as much as it applies to any other aspect of the dismissal (as was also made clear in Foley).

[96]On 3 October, when I had retired to consider my decision, I was provided with some further written submissions by Mr O’Keefe, relating to Airbus UK Ltd v Webb

[2008] EWCA Civ 49

. I offered Ms Harty the choice of making oral submissions that afternoon or replying in writing and she chose the latter. In Airbus the Court of Appeal held that there was no legal principle that a spent warning should be ignored for all purposes. In that case there were no potential other aspects of unfairness, and it was clear that, if the Tribunal at first instance had not considered itself bound by authority to conclude that the use of the expired warning by itself rendered the dismissal unfair, it would otherwise have considered the dismissal perfectly fair. All the Court of Appeal concluded in Airbus was that the use of the spent warning did not require the Tribunal to find that the dismissal was unfair. As Mr O’Keefe fairly put it in his supplementary written submissions, it will not necessarily be unreasonable for a dismissing officer to take into account the fact of expired disciplinary action; expired disciplinary intervention may reasonably be viewed as a point of distinction between employees said to have been treated inconsistently. As is clear from the other authorities discussed in that case, that is not to say that the use of a spent warning cannot be taken into account in determining the question of fairness – it plainly can. I also note what is in my judgment a significant difference – it was final warning in issue in Airbus, in other words a formal sanction after a finding of misconduct. That is very far from the “file note” etc. in the case I am deciding. Also, in Airbus the conduct leading to the warning was very similar to the misconduct which led to the dismissal, and that later misconduct had been committed shorty after the warning’s expiry. Further, the Court of Appeal observed that the respondent’s policy, which was in line with ACAS guidance in force at the time, was that warnings should usually (my emphasis) be disregarded for disciplinary purposes. The respondent’s policy in this case did not contain the word usually. (The ACAS Code currently in force does not contain a like provision.) Mr O’Keefe submitted that, while the proper construction of the respondent’s disciplinary procedure was that it did not permit conduct subject to an expired warning to be held against the claimant, what was, on the respondent’s case, previous unsuccessful management interventions were a relevant and permissible consideration when considering whether to impose a sanction short of dismissal. I am not convinced that there is a significant distinction to be drawn between holding the previous conduct against the claimant and using it to decide on the appropriate sanction – and if there is such a distinction the respondent’s clearly-worded policy did not make it – but this is something of a moot point in any case given my view that the previous conduct was so different in character to the claimant’s 2023 conduct that it ought not to have been considered in nay event (see below). Most of the older “conduct” was in fact about competence, not misconduct, and the rest should have been disregarded as there was never in fact any adverse finding against the claimant. Further, in AC Bell’s reasons, and as he accepted in cross-examination, it is clear that he used the previous matters, not just in consideration of whether previous interventions had been successful, but also in coming to his conclusion that the 2022 conduct was not an isolated incident. Reduction of awards

[97]In the event that the dismissal was unfair, I would go on to consider whether any adjustment should be made to the compensatory aspect of the award for damages on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might still have been fairly dismissed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

. The principle applies whether a dismissal is procedurally or substantively unfair, since the distinction between the two is difficult to draw in practice. The question is what the particular employer would have done, not what a hypothetical fair employer would have done. The burden of proving that an employee would have been dismissed in any event is on the employer.

[98]Separately to Polkey, I would also go on to consider whether any adjustment should be made to the basic and compensatory elements of any award on the basis of “contributory fault”. S 122(2) deals with the basic award: “Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” S 123(6) ERA deals with the compensatory award: “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.”

[99]In Rao v Civil Aviation Authority

[1994] IRLR 240

the Court of Appeal held that a Tribunal is entitled to reduce a compensatory award both for contributory conduct (under what is now s 123 ERA) and to reflect a finding that if a fair procedure had been followed then there was a chance that dismissal would still have happened (i.e. a Polkey reduction). The deduction under the Polkey principle may very well have a significant bearing on what further deduction should made for contributory conduct, so the Tribunal should first apply the Polkey principle and then consider contributory conduct. Since the deduction made under Polkey could affect what was the just and equitable deduction from the compensatory award for contributory conduct, the latter would not necessarily be the same as any deduction from the basic award for contributory conduct. But, if a different percentage is to be applied to the reductions in the compensatory and basic awards, the basis for that conclusion should be set out (Dee v Suffolk County Council EAT 0180/18).

[100]In Steen v ASP Packaging Ltd

[2014] ICR 56

at para 11 the EAT said that when the Tribunal considers reducing the basic and compensatory awards on account of the claimant’s conduct it must:(1) identify the conduct which is said to give rise to the possible contributory fault;

(2) having identified that, ask itself whether that conduct is blameworthy;

(3) ask whether the blameworthy conduct identified caused or contributed to the dismissal and

(4) decide what the extent of the reduction should be. As the same case makes clear, there is no question of considering the band of reasonable responses – it is the Tribunal’s view alone which matters. The EAT also said that a finding that a claimant was 100% responsible for his dismissal, and that it would therefore be just and equitable to reduce compensation by that amount (i.e. to zero), would be unusual (para 17) or exceptional (para 18) but was permissible.

[101]In Hollier v Plysu Ltd

1983 IRLR 260

the EAT had suggested (and the Court of Appeal implicitly agreed at para 18) that the contribution should be assessed broadly and should generally fall within the following categories: employee wholly to blame (100% reduction); employee largely to blame (75%); employer and employee equally to blame (50%); employee slightly to blame (25%).

[102]A finding that an employee’s conduct is the sole cause of his or her dismissal will not inevitably result in a zero award; a Tribunal might still have to modify the percentage reduction in light of what is just and equitable (Lemonious v Church Commissioners

UKEAT/0253/12/KN

). CONCLUSIONS The dismissal: reason and fairness

CONCLUSIONS

[103]As I have said, it was for the respondent to prove that the principal reason for the claimant’s dismissal was (mis)conduct, although in fact Ms Harty pragmatically conceded that the respondent had established that. I agree.

[104]The principal question for me is whether the dismissal was fair. In deciding that, I take account of whether the respondent acted reasonably in treating the claimant’s misconduct as a sufficient reason to dismiss, taking into account its size and administrative resources. As to the latter, the respondent is a fairly large organisation and clearly it did have sufficient resources to be able to interview the relevant witnesses and conduct separate investigation, conduct and appeal hearings, each chaired by a different person. Of course, even in the case of the largest or organisations, the law does not demand perfection. The process before me took over three days (including deliberation and writing up time) with each party represented by counsel throughout. That process inevitably involves more detail and scrutiny than can reasonably be expected of an employer’s disciplinary process, and of course it is subject to different rules.

[105]Applying the Burchell criteria, Ms Harty also conceded that the first element was met – the employer did have a genuine belief that the employee was guilty of misconduct. Again, I agree.

[106]I also find that the respondent had carried out as much investigation into the matter as was reasonable. Witnesses, including the claimant, were interviewed at some length. I have already explained why it is my view that fairness did not require the respondent to go back to Ms Ditta and re-interview her about what the claimant had said. In short, Mr Bell had all of the information and evidence required to make a decision. Indeed, as I will come to later, he took into account rather too much information.

[107]There is also no issue here that the respondent had reasonable grounds upon which to sustain its belief that the claimant was guilty of misconduct. There was never any dispute that he was. The real issue therefore is whether Mr Bell, and through him the respondent, had in mind reasonable grounds upon which to sustain the belief that the claimant was guilty of misconduct sufficiently grave to warrant summary dismissal. I remind myself that the band of reasonable responses test applies here – the question is not what I would have decided; it is whether the respondent’s decision was one which no reasonable employer could have made in the circumstances. When I use the word “fair” below, this is what I mean.

[108]Since this is a case of unfair, not wrongful, dismissal, it is not necessary for me to embark upon a detailed consideration of whether there was a fundamental breach of contract by the commission of gross misconduct, but I will say that in my judgment the age/appearance comments were alone capable of amounting to the sort of behaviours amounting to gross misconduct within the meaning set out in the respondent’s policy documents which I refer to above at para 16.

[109]I think it is helpful to consider the following hypothetical question. Would it have been fair for the respondent to have dismissed an employee who made the age/appearance comments about the casualty, and the “pull a pig” comment not directly about the casualty, in the circumstances that the claimant was said to have made those comments, if that employee had failed to “take ownership” of the remarks, but the remarks were out of character and the employee had a long record of good service without any previous disciplinary findings?

[110]The first question in deciding whether dismissal is a fair response to the misconduct must of course involve deciding, not just whether there was misconduct, but also what that misconduct was. To say that the gravity of misconduct must be taken into account is not to say that misconduct is acceptable. Considering first the age/appearance comments, though a clear finding about what the claimant actually said would have been the ideal here, given the differences in recollection between the witnesses that would have been difficult (as I indeed found myself). AC Bell was in my view entitled to take something of a broad brush approach here given that each witness’s version was of similar gravity. Considering three examples, “she looked old for her age, she looked terrible”; “she was meant to be 30 but she looked way older than that” and “not being the most attractive woman in the world, something along those lines”, each seem in my view roughly equally offensive. And there is also the point that the witnesses were not saying that the particular remarks they quoted were the only ones they recalled the claimant making. AC Bell did conclude, in my view, that the claimant had made inappropriate comments about the casualty’s age or appearance which had been sufficient to cause offence to at least two people who heard them. It was reasonable for him to have concluded that those comments were sexist, i.e. they would not have been made about a man. I accept that the lack of clarity about what that claimant had actually said added some element of unfairness, which was added to by the arguably unhelpful description of the age/appearance comments as “misogynistic and sexualised”. But whether or not the words “sexualised” and “misogynistic” were strictly accurate descriptions of the age/appearance comments, AC Bell had formed a view on the gist of what the claimant had said, even if he had not formed a view on the precise words used; whether he used precisely the right words to describe that gist is less important than whether he appreciated the gravity (or “offensiveness”) of the comments. Even if a decision might have been expressed better, that alone is unlikely to render the decision unfair. Considering the “pull a pig” comment, even on a correct consideration of the claimant’s own account of the comment – which is of course the only account which the respondent had – the respondent was entitled to treat the comment seriously. Even if the claimant was not referring directly to the casualty, he had still chosen, as the most senior person in the room, to tell his colleagues in a meeting about his sexual preferences using an offensive word to describe women. The respondent would also have been entitled to conclude that even if the claimant made the comment in response to a flippant question from one person about whether the casualty was his type, that would not have entitled the claimant to assume that everyone else in the room wanted to hear what he then said. I have already accepted that the respondent was entitled to take account of wider circumstances prevailing at the time with regard to sexism and misogyny in the fire service in considering the gravity of the misconduct.

[111]In my hypothetical scenario of an employee who lacked insight but had a flawless disciplinary record and positive character references and who made the age/appearance and “pull a pig” comments in an isolated incident of misconduct, a decision to dismiss can I think reasonably be described as harsh, particularly where there were serious alternative penalties such as demotion and a final written warning available. But I cannot say that no reasonable employer would have dismissed in those circumstances. I say this even taking account of Strouthos (length of service to be taken into account) and Hewston (as a general rule lack of insight should not turn conduct which is not serious enough to warrant dismissal into conduct which is). I do not consider the lack of an explicit zero-tolerance policy to be a particularly significant feature here – the claimant was in a position of responsibility and knew or should have known that comments such as the age/appearance and “pull a pig” comments were unacceptable without the respondent having to spell it out.

[112]Having come to that view, I ask now whether there were any other features of this case that tip the balance and render the dismissal unfair (in the sense I set out at para 107 above). In my judgment, there are. The following features rendered the dismissal unfair in my view.

[113]First, and most significantly, the respondent took account of irrelevant factors, namely the Note for File, the PDPs, and the October 2022 meeting, and those factors, critically in my judgment, materially influenced the decision to dismiss. Considering the first of those in breach of the respondent’s own policy added a further element of unfairness. I have already explained that even if the distinction the respondent sought to draw, between using the information to assess the seriousness and to decide whether other penalties were appropriate was a valid one, the respondent in fact did both. Applying Airbus, the use of the information in breach of policy does not alone render the dismissal unfair. But the breach of policy here is secondary. The real point is that, even if there had been no policy breach, by taking account of the file note, the PDPs and the October meeting, the respondent erroneously concluded that previous interventions had not worked and so it had no suitable options short of dismissal. It also overstated the gravity of the misconduct by erroneously taking into account what criminal lawyers would call an aggravating feature (or the absence of a mitigating feature), namely that the claimant’s behaviour was not isolated when in fact he had never done anything remotely similar (and in the character references there was positive evidence of that, rather there being merely an absence of evidence). The only thing in all of the file note, the PDPs and the October meeting that might reasonably have been taken into account and could reasonably be described as misconduct was falling asleep during a presentation in 2017. The rest was about performance. If some of the things discussed in the informal October meeting veered into attitude (and therefore possibly misconduct), it was not something that any disciplinary action was taken over and on any reasonable view the claimant’s performance had improved within 6 or 7 weeks of the meeting (see para 15 above). In my judgment no reasonable employer would have taken account of the file note and the PDPs in the way in which the respondent did, and no reasonable employer would have given more than minimal weight to the October meeting, given the latter’s informal status and the documented official contradiction to it weeks later. Instead, it is clear from the transcript of the disciplinary hearing and AC Bell’s written reasons that those factors were a particularly significant part of his decision. They materially affected his view both on the seriousness of the conduct and on whether alternative lesser sanctions were appropriate. As to the latter, although I accept that AC Bell genuinely did give some consideration to alternatives to dismissal, there cannot have been a meaningful consideration in those circumstances.

[114]Second was the erroneous conclusion that the claimant had made the “pull a pig comment” directly about the casualty. This did, as I have already found, materially influence the decision, even if it was one of a number of influences. For the reasons I set out towards the end of para 110 above, I am not of the view that this added much unfairness, but it did add some. There is also the point that the mistake was not repeated, albeit nor was it acknowledged, in the appeal process. This is the only aspect of unfairness that was to some degree corrected on appeal. Otherwise I accept the submission made on behalf of the claimant to the effect that, even if it added no additional unfairness, the appeal process did not correct the original unfairness.

[115]Third, the erroneous conclusion that that claimant had changed his story about whether the “pull a pig” comment had been about the casualty also had some influence on the decision. So too did the inaccurate characterisation that the claimant had tried to excuse his behaviour by putting it down to a lack of training, the lack of feedback after the WCDC interview and the way in which his line manager had conducted the October 2022 meeting, i.e. that the claimant was “making excuses” when in fact all he was doing was attempting to answer irrelevant aspects of the respondent’s case against him. These all contributed to the broader conclusion that the claimant lacked insight or “ownership”, but this aspect also contributed less unfairness than might first be apparent, since there were perfectly good other reasons for coming to that conclusion – for example the claimant, on the most generous view, not even remembering making the age/appearance comments, or the claimant failing to appreciate the seriousness of the “pull a pig” comment.

[116]Fourth, as I have already said, I do consider that the lack of precision about what the claimant had actually said (with regard both to the age/appearance and the “pull a pig” comments) contributed some unfairness, though for the reasons set out at para 110 above, this is again something which contributed less unfairness than might first be apparent and is not something that of itself would have made the dismissal unfair. But even where he knew what he meant, AC Bell’s use of the words “sexualised and misogynistic” to describe the age/appearance comments, without a clear finding on what was actually said, might have left an observer in some doubt about the gravity of the misconduct.

[117]I do not accept that the failure to mention the character references or the length of service in the reasons for the dismissal adds any further unfairness, having already accepted that AC Bell did take those points into account. Aside from the issue whether the conduct was isolated, how much weight to give those and other points in mitigation (such as illness and being upset at the WCDC failure) was a matter within AC Bell’s discretion. Otherwise, where I have not mentioned a particular feature in the above few paragraphs, it is either because it did not appear to me to be a significant influence on the decision to dismiss or because in my judgment there was no unfairness in the respondent’s treatment of the point.

[118]It may be that some of the above four features (and in particular the third and fourth) would not alone have made the dismissal unfair, but in my judgment their cumulative effect did have that consequence. No reasonable employer would have dismissed in these circumstances and the dismissal was therefore unfair. Polkey

[119]This is not a case where adopting a fairer procedure would have delayed the claimant’s dismissal. The issue is therefore whether there is a real chance that the claimant might not have remained in employment had the procedure been fair.

[120]Is it possible to make an assessment of the chance that a fair process would have resulted in this employer (not simply a notional fair employer) dismissing the claimant? AC Bell was not asked what his attitude might have been in the absence of the four unfair features which I set out above (no doubt because the parties did not of course know at that stage which features I would identify as unfair). In the absence of that evidence, I ask myself whether attempting to assess the chance of a fair dismissal would involve inference (which is permissible) or speculation (which is not). This would involve an assessment of the likelihood that misconduct would have been found, and what that misconduct would have been, and the likelihood that a dismissal would have been found to be the appropriate response.

[121]I consider it very likely that a fair process would have resulted in findings similar to those I set out at para 78 above, i.e. that the claimant made the age/appearance comments and made the “pull a pig” comment, the latter not being directly about the casualty. I do not consider that this involves impermissible speculation on my part.

[122]A more difficult question to answer is what are the chances that, on the basis of those findings and in the absence of the four features, AC Bell would still have dismissed the claimant. It would be difficult, though perhaps not impossible, to properly assess the percentage chance of AC Bell having concluded that the claimant’s misconduct in isolation, coupled with what lack of ownership/insight it would have been reasonable to have found (see para 115 above) amounted to gross misconduct worthy of dismissal. The reason I say it would be difficult is that although it is clear from AC Bell’s witness statement that he regarded the claimant’s behaviour as particularly serious, that assessment is inextricably wrapped up in the erroneous conclusion that the claimant had made the “pull a pig” comment about the casualty. But given my observations above at para 110 to the effect that even if the comment had not been made about the casualty the misconduct would still have been serious, this point alone would not prevent me from assessing a percentage chance. But a finding of gross misconduct means only that summary dismissal is a possible sanction, not the only possible sanction. AC Bell’s view that the claimant’s behaviour was not isolated and previous interventions had not changed his behaviour seems to me to have been the principal, if not the only, reason for his decision that dismissal was the only appropriate sanction. It seems to me that it would be entering the realms of speculation for me to put a percentage figure on the chances that AC Bell would have dismissed in the absence of the main or only feature which in fact caused him to believe that dismissal was the only appropriate penalty.

[123]I therefore do not consider it appropriate to make a Polkey reduction here. I would also add that it seems to me that, a Polkey reduction being a matter of discretion, the justice of the situation can in my judgment be properly addressed in another way, which I turn to now. Contributory conduct

[124]The conduct I have set out at para 79 above plainly was blameworthy and contributed to the dismissal. But it was not the sole cause, given in particular the first factor I identify at para 113 above (taking irrelevant information into account). Applying Hollier to the letter would leave a choice between a 50% reduction (both parties equally to blame) and 75% reduction (claimant largely to blame). But I note that Hollier does not say that a reduction must fall within those categories. The claimant was not quite largely to blame, but this is not a situation where the parties were equally at fault. In my judgment the appropriate reduction would be 65%. I can see no reason in this case to treat the basic and compensatory awards differently, since I have made no Polkey reduction to the latter and in the circumstances of this case the claimant’s “conduct before the dismissal” is what “contributed to” the dismissal. ANCILLARY ISSUES

[125]I will issue a separate set of directions in order that a remedy hearing can be arranged.

[126]Finally, I apologise to the parties for the time it has taken me to prepare and send out this reserved judgment. Approved by: