The claims made by the claimant and the procedural history[1]By an ET1 claim form presented on 5 September 2023, the claimant claimed(1) that he had been dismissed (a) unfairly within the meaning of section 98(4) of the Employment Rights Act 1996 (“ERA 1996”), and (b) wrongfully in that he was dismissed summarily and it was his claim that he had not fundamentally breached or repudiated the contract of employment (in the circumstances the respondent relied on the implied term of trust and confidence),(2) that there had been unlawful deductions from his wages, contrary to section 13 of the ERA 1996, and(3) and that the respondent had breached the Equality Act 2010 (“EqA 2010”) in the following ways:1.1 by discriminating against him directly, within the meaning of section 13 of that Act, contrary to section 39 of that Act, because of the protected characteristic of disability;1.2 that his dismissal, which was obviously unfavourable treatment of him within the meaning of section 15 of that Act, was not a proportionate means of achieving a legitimate aim and was therefore contrary to section 39 of that Act; and1.3 that there had been a failure to make one or more reasonable adjustments within the meaning of section 20 of that Act, contrary to section 21 of that Act. The issues agreed by the parties and adopted by the tribunal before the full merits hearing[2]The issues were stated in a detailed form in a case management summary written by Employment Judge (“EJ”) George of which there was a copy at pages 60-78 of the bundle. We found some of the questions in the list to be superfluous, but for the sake of clarity and certainty, it is in the following form. “1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 25 March 2023 may not have been brought in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Was the unauthorised deductions complaint made within the time limit in section 23 of the Employment Rights Act 1996? The1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?1.3.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Unfair dismissal2.1 Was the claimant dismissed?2.2 what was the reason or principal reason for dismissal? The respondent relies on the alleged conduct of the claimant as the reason for dismissal.2.3 The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.2.4 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.4.1 there were reasonable grounds for that belief;2.4.2 at the time the belief was formed the respondent had carried out a reasonable investigation;2.4.3 the respondent otherwise acted in a procedurally fair manner;2.4.4 dismissal was within the range of reasonable responses.2.5 The claimant alleges that the following are relevant circumstances which mean that the dismissal was unfair:2.5.1 a fair and reasonable investigation was not undertaken;2.5.2 the initial “chat” on 16 December 2022 where valuable and fresh evidence was given, was not minuted and information from that meeting was not included or referred to within the investigation report or subsequent disciplinary proceedings;2.5.3 the respondent failed to complete the investigation in a timely manner;2.5.4 the investigation went beyond the remit of the complaints and there was a strong desire on the part of the respondent to find other evidence to justify dismissal not linked to the complaints being investigated;2.5.5 suspension was allowed to continue without review;2.5.6 the claimant and his union were not kept informed on investigation progress;2.5.7 the suspension policy was not applied consistently with the claimant being treated less favourably than a colleague (Gary Cripps);2.5.8 the investigator prejudiced the outcome to the disciplinary procedure by concluding in his investigation report that disciplinary action for gross misconduct should take place;2.5.9 the respondent did not take account of the claimant’s disabilities or make reasonable adjustments for these during the investigation process all prior to dismissal or subsequent appeal;2.5.10 the respondent failed to adequately engage and communicate with the claimant and the breakdown in communication was due to the respondent’s refusal to engage with the trade union;2.5.11 the respondent did not properly consider any alternatives to dismissal;2.5.12 the claimant was not provided with a copy of the Standards of Behaviour Policy and this was not included within the papers for the disciplinary hearing;2.5.13 the claimant’s request for a character witness to attend the disciplinary hearing was dismissed without proper consideration by Nikki Mistry on 25 April 2023 yet the respondent was free to take evidence from other customers/3rd parties on the claimant’s performance;2.5.14 no evidence of any complaints/negative comments the respondent sought to rely on for the dismissal or appeal were produced;2.5.15 the disciplinary hearing went ahead without the claimant being in attendance as a date was not agreed with his union representative for support as had been requested. The claimant believes that it was in the respondent’s interests to proceed without the claimant’s attendance as the decision for dismissal had already been made;2.5.16 the decision to dismiss was taken by Nikki Mistry who was unhappy with a discussion with the claimant on 9 December 2022 and this was a contributing factor for the reason for the dismissal;2.5.17 the claimant’s evidence provided to the investigating officer was dismissed as being inaccurate by them and not included with the investigation report papers nor for the disciplinary hearing or appeal;2.5.18 dismissal was not a reasonable sanction in the circumstances;2.5.19 the respondent did not take account of the claimant’s length of service and career nor his keen disciplinary record;2.5.20 the respondent failed to follow disciplinary procedure; and2.5.21 the respondent failed to follow the ACAS Code of Practice on Disciplinary Procedures.[3]Remedy for unfair dismissal3.1 If there is a compensatory award, how much should it be? The3.1.1 What financial losses has the dismissal caused the claimant?3.1.2 Has the respondent shown that the claimant acted unreasonably by failing to take reasonable steps to replace their lost earnings, for example by looking for another job?3.1.3 If so, what would their earnings have been had they taken those reasonable steps?3.1.4 If not, for what period of loss should the claimant be compensated?3.1.5 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.1.6 If so, should the claimant’s compensation be reduced? By how much?3.1.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.1.8 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?3.1.9 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?3.1.10 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?3.1.11 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.1.12 Does the statutory cap of fifty-two weeks’ pay or £105,707 apply?3.2 What basic award is payable to the claimant, if any?3.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[4]Wrongful dismissal / Notice pay4.1 What was the claimant’s notice period?4.2 Was the claimant paid for that notice period? The respondent did not pay the claimant for a period of notice.4.3 If not, was the claimant guilty of gross misconduct?[5]Disability 5.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The respondent accepts that the claimant had such a disability from December 2022 onwards. The Tribunal will decide:5.1.1 Did they have a physical or mental impairment: The claimant relies upon the mental impairment?5.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?5.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?5.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?5.1.5 Were the effects of the impairment long-term? The5.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?5.1.5.2 if not, were they likely to recur?[6]Direct disability discrimination (Equality Act 2010 section 13)6.1 Did the respondent do the following things:6.1.1 Suspend the claimant on 6 January 2023;6.1.2 Investigate the claimant for alleged gross misconduct between 15 December 2022 and 20 March 2023?6.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says he was treated worse than Gary Cripps. The respondent does not accept that the claimant was in materially the same circumstances as Gary Cripps because no complaint had been made against Mr Cripps by a customer.6.3 If so, was it because of disability?6.4 Did the respondent’s treatment amount to a detriment?[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the respondent do the following acts:7.1.1 Miscategorise the claimant’s method and manner of communication as unreasonable;7.1.2 Miscategorise the claimant’s requests to have his trade union representative present in meetings, and therefore require postponements to meetings where he was not available, as unreasonable or as a delaying tactic;7.1.3 Dismiss the claimant;7.1.4 Dismiss the claimant’s appeal.7.2 Was any of the alleged treatment unfavourable to the claimant?7.3 Did the following things arise in consequence of the claimant’s disability:7.3.1 The manner and method of his communications can appear defensive or aggressive at times;7.3.2 He is unable to participate fully in hearings without the assistance of a supporter/representative;7.3.3 the claimant’s sickness absence between 16 December 2022 and 6 January 2023?7.4 Was the unfavourable treatment because of any of those things?7.5 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:7.5.1 Ensuring staff meet the requirements to provide the required level of service to its customers;7.5.2 Enabling proper, reasonable, fair and effective management of the workplace and/or the respondent’s staff;7.5.3 Enabling the respondent to effectively manage its business and meeting its commercial requirements, objectives and compliance obligations.7.6 The Tribunal will decide in particular:7.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;7.6.2 could something less discriminatory have been done instead;7.6.3 how should the needs of the claimant and the respondent be balanced?7.7 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?[8]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)8.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?8.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:8.2.1 Not undertaking a risk assessment for sick or disabled employees;8.2.2 Not coordinating with employees’ supporter/trade union representative for meetings from mid-January 2023 to 6 April 2023;8.2.3 Management not keeping in touch with employees during sickness absence by way of absence review meetings, return to work meetings or otherwise – this refers to the period of sickness absence 16 December 2022 to 6 January 2023;8.2.4 Not providing adequate information or evidence in advance of formal meetings, of which an outcome could be dismissal.8.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that [to be added after further information provided]?8.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?8.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:8.5.1 Undertake a risk assessment to fully understand the claimant’s medical needs and what arises as a consequence of his disability;8.5.2 Arrange a single point of contact for support when he was absent sick and when he was in work so that he could received support. This would also allow him to explain his medical conditions;8.5.3 Conduct regular welfare checks or absence review meetings when absent sick;8.5.4 Conduct proper return to work meetings;8.5.5 Liaise directly with his supporter/trade union representative to set meetings;8.5.6 Provide adequate information an evidence in advance of the formal meeting to allow him time to prepare and lessen his anxiety.8.6 Was it reasonable for the respondent to have to take those steps [and when]?8.7 Did the respondent fail to take those steps?[9]Remedy for discrimination9.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?9.2 What financial losses has the discrimination caused the claimant? The claimant states that his present fitness to work is adversely affected by personal injury caused by the alleged discriminatory acts and that loss of earnings flows from them as a result, separately to his contention that a discriminatory dismissal caused a loss of the earnings he would have earned had he not been dismissed by the respondent.9.3 Has the respondent shown that the claimant acted unreasonably by failing to take reasonable steps to replace their lost earnings, for example by looking for another job?9.4 If so, what would their earnings have been had they taken those reasonable steps?9.5 If not, for what period of loss should the claimant be compensated?9.6 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?9.7 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?9.8 Are there more than one cause of the claimant’s present mental ill health such that any compensation should be apportioned as between that proportion which is caused by unlawful acts and that proportion which is not?9.9 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?9.10 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?9.11 Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]?9.12 If so is it just and equitable to increase or decrease any award payable to the claimant?9.13 By what proportion, up to 25%?9.14 Should interest be awarded? How much?[10]Unauthorised deductions10.1 Were the wages paid to the claimant between 8 March 2016 and 5 December 2016 less than the wages they should have been paid because of a failure to pay their full entitlement to night shift work?10.2 Were the wages paid to the claimant between 7 April 2016 to 1 July 2016 less than the wages they should have been paid because of a failure to pay their full entitlement to dirt and discomfort allowance?10.3 Were the wages paid to the claimant for the period 4 December 2020 through to the effective date of termination less than the wages they should have been paid because of a failure to pay their full entitlement to Outer London weighting?10.4 Was any deduction required or authorised by statute?10.5 Was any deduction required or authorised by a written term of the contract?10.6 Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?10.7 Did the claimant agree in writing to the deduction before it was made?10.8 How much is the claimant owed?[11]Remedy11.1 To the extent not already considered, did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply to the wrongful dismissal and unauthorised deduction from wages complaints?11.2 Did the respondent or the claimant unreasonably fail to comply with it?11.3 Is it just and equitable to increase or decrease any award payable to the claimant?11.4 By what proportion, up to 25%’. A comment on that list and the structure of these reasons 3 There were several aspects of that list which were in our view problematic, ignoring for the moment the oddity of asking whether it was unfavourable treatment to, for example, dismiss the claimant. We refer below only to some of those “several aspects”, since on our findings of fact, some of the above issues did not need to be addressed. 4 In what follows, we4.1 in paragraphs 5-7 below refer to the evidence before us;4.2 in paragraphs 8-148 below, state our findings of fact and the reasons for them; in the course of doing so, with regret, we set out significant parts of the evidence before us to a greater extent than normal (or at least than we would have preferred); that is because of the width of the net cast by the claimant in advancing his case, as a result of which we could see no better way of explaining our conclusions, both on the facts and on the result of the application of the relevant law to those facts;4.3 in paragraphs 150-169 below, refer to the relevant legal principles and case law relating to those principles;4.4 in paragraph 170 below, set out a passage in a High Court judgment (that of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)) which is a helpful statement by an eminent judge of the malleability of memory and the extent to which a person can, over a period of time, come genuinely to “remember” something which did not, in fact (or at least in the judgment of a court or tribunal) occur;4.5 in paragraphs 171-193 below, discuss some aspects of this case in the light of the application of the relevant legal principles to our findings of fact; and4.6 in paragraphs 194-256 below, state our conclusions on the claims made in these proceedings. The evidence before us 5 We heard oral evidence from the claimant on his own behalf and, on behalf of the respondent, from the following witnesses:5.1 Mr Harps Sohanpal, Patch Lead/Patch Manager;5.2 Mr David (Dave) Butler, Senior Area Manager, and the claimant’s former Patch Manager;5.3 Mr Nikki Mistry, Senior Area Manager; and5.4 Mr Liam Smith, Regional Director. 6 We had before us a bundle of documents containing 522 pages including its index, and a supplemental bundle initially containing three pages including its front sheet. During the hearing, Mr Milne (at our suggestion) sought and obtained copies of emails to which reference was made in the respondent’s witnesses’ witness statements but which were not in the bundle. Those emails were all evidentially important and they were added to the supplemental bundle. Where we refer below to a page, we refer to a page of the 522-page hearing bundle. Where we refer below to a page of the supplemental bundle, we do so by using the letters “SB” and adding the number of the page, so, for example, SB4 is a reference to page 4 of the supplemental bundle, and SB2-SB3 is a reference to the document at pages 2-3 of that bundle. 7 Having heard the above oral evidence and read the documents to which we were referred, we made the following findings of fact. Our findings of fact The claimant’s employment and the circumstances leading up to the events of 15 December 2022 The period of the claimant’s employment by the respondent 8 The claimant was employed by the respondent from 1 January 1988 onwards. He was dismissed from his employment with the respondent with immediate effect on 25 April 2023. The stated basis for his dismissal was gross misconduct. The circumstances which led up to that dismissal were as follows. The claimant’s role at the time of his dismissal 9 At the time of his dismissal, the claimant was employed as an “NSR/Field Based Co-ordinator”. That role was abbreviated in many places to “FBC”. The claimant described the role in the following words of paragraph 8 of his witness statement (which we accepted, subject to what we say in paragraph 103 below about the number of sites for which the claimant was the FBC). “Day to day, I managed a set area for New Sites, looking after over 100 sites for the infrastructure. This role involved me meeting with clients, directors, project managers, site agents, ground workers and construction directors for single dwellings, flats or complete housing estates for major building companies. Within this role I planned from start to finish of the copper and fibre infrastructure for customers broadband and telephone services.” The claimant’s health 10 In paragraph 12 of his witness statement, the claimant said this: “In April 2021, following multiple psychological therapy sessions, I was formally diagnosed with anxiety and depression.” He did not say by whom he was so diagnosed, and what were the formal qualifications of that person. It appeared that it was Ms Tessa Davies, the “Team Psychologist Dacorum and St. Albans Wellbeing Team IPT Service Lead”. That was apparent from the email at pages 487-489. The email was sent on 1 October 2021 to a Mr Kevin Murphy and a Mr Kevin Brady at email addresses which were such that they appeared to be employees of the respondent. The email started: “I am writing at the request of Martyn York, one of your employees. I am a psychologist with the Hertfordshire Wellbeing team and Mr York has been attending psychotherapy sessions with me. Mr York initially attended for anger management therapy but it has become clear that he is very depressed, anxious and stressed. It is very difficult engage [sic] in anger management therapy when this is the case.” 11 Nevertheless, on 11 November 2021, Ms Davies completed a form entitled “Employment Support” of which there was a copy at pages 490-491. It was under the banner of “Hertfordshire Partnership University NHS Foundation Trust”, and in the box for “additional details”, this was said (under the words: “Risk: No risk identified”): “Client is in dispute with his employer and off sick. He has been diagnosed with depression and anxiety and has been prescribed anti-depressants. The client has had anger management problems, but the antidepressants have helped with this. He has never displayed angry behaviour in our sessions. Employer keeps making changes to working areas and managers. Client has had many managers in the last few years. Client is a telephone engineer and is very committed to his customers and in doing a good job. He finds it very upsetting with the way the customers are affected. Client needs mentoring and support with this.”[12]On 10 February 2022, Ms Davies sent the claimant the letter at pages 516-517, which started: “I write to you following your referral on the 06/04/2021 to the Wellbeing team. I hope you have found your treatment for anger management and depression helpful, and wanted to confirm that you have now completed your treatment. As agreed, you have been discharged from the service.”[13]The next part of the letter showed that the claimant’s symptoms of “low mood and anxiety” appeared to “have worsened”. The letter continued: “However, we have discussed this and you have told me that your work situation continues to be very stressful for you. You report that you have learnt strategies to manage your anger more effectively. You have learnt to take a step back, take a breath, observe and reflect on situations and try to see them from a different perspective. You have also learnt about self care and how important this is to manage depression. With the continuing pressures at work, you find it hard to make time for yourself but you are trying to do this. Please continue to use the techniques as well as others detailed on your ‘Maintaining Progress’ form.”[14]The claimant’s doctor provided “fit notes” for him for the period from 6 January 2022 to 30 June 2022 of which there were copies at pages 521-522, which contained the following comments, respectively:14.1 “current managing full time hours - but needs to remain under review as anxiety and fatigue increasing”, and14.2 “currently managing full time hours but needs to have time for counselling in place and hours need to remain under review”.[15]The claimant then, as he described in paragraph 27 of his witness statement, “had to undergo an operation on [his] shoulder.” He continued: “27. ... This was a big procedure and due to the nature of my work, I could not work for around three months. During this period, I was not only struggling with the pain of this operation and the ongoing physiotherapy, but I continued to battle with my mental impairments. I continued taking my medication as advised.28. On my return to work on 5 October 2022, my mental health rapidly declined for a number of reasons, though all work related. By way of example, Douglas Trail, who was assigned to me and my team to manage our workloads was removed whilst I was absent and without any prior discussion with me. This meant that I not only returned to a significant amount of work, but my ability to deal with such work more efficiently was restricted due to his removal. My workload at this time consisted of past, present and future projects that were either underway or set to commence in due course. This meant that I had to deal with the backlog of issues that were applicable when I was last working as little to none of my work was completed in my absence. This felt like an impossible task.29. At no point before or during my return to work was I ever contacted or consulted by the Respondent about my health. As an employee of the organisation with widely known mental health issues, I expected to be contacted before my return to check in on my wellbeing and to discuss my workloads/expectations as I am eased back into full time work. Instead, I was thrown right back in the deep end which in fact heighted [sic] the stress and pressure that I was experiencing before my period of absence and which has been the reason for prior absences. I was extremely anxious before my return back to the work and I would have very much appreciated a check in call as to my state of mind at the bare minimum. As an employee, this lack of empathy made me feel worthless and a burden to the organisation.” What happened on 15 December 2022
Introduction
[16]The claimant was dismissed after two complaints were made by email to the respondent about his conduct on 15 December 2022. The first email was about what happened during a telephone conversation with a developer customer. The second was about what happened at another developer’s site. The claimant was the only person present at the place where the events described in the second of those emails occurred who gave evidence to us. We did, however, have before us several documents which contained statements in the names of other persons who were present there, but those statements were, we were eventually able to ascertain by reference to emails which were disclosed during the hearing, made no sooner than five days after the events of that day. We say that because the earliest of those statements was (see paragraph 51 below) sent by email to Mr Sohanpal by Mr Gary Cripps at 18:19 on 20 December 2022. That email had in its subject line “and RE: onsite incident at westfeilds allotments on15/12/2022”. The other emails were sent after that day, as we describe in paragraphs 52 and 53 below.[17]We also had before us a document which the claimant had put before the respondent on (some other emails disclosed during the hearing showed and the claimant confirmed) 22 February 2023. That document was at pages 385-392. Its predecessor (which had a little less content at its beginning and its end, but the body of its text was in the same terms) was at pages 376-383. We return to the document at pages 385-392 in a number of places below. Emailed complaints from two developers about what had happened on 15 December 2022 and related matters The situation concerning a site in Cambridge Road, St Albans[18]The sequence of events shortly before, and on, 15 December 2022 was as follows.[19]At 4.11pm on 14 December 2022, Mr Shaun Murphy, the Site Manager for J.Murphy Contractors, sent an email to Mr Butler (at pages 206-207), in the following terms. “Subject: Re: L/SB/01P - 32 Cambridge Road, St Albans Hi Dave, As discussed on the phone, we would like to call off the cable installations on the above project, but we have had a bit of an issue, as follows:• ‘Proposal Issue’ was original plan, which was changed by Martyn York. I don’t seem to have a copy of the changes he made, as he did it by hand on the ‘Proposal Issue’ drawing. The changes meant that we would have had to have 3no. boxes on site, which couldn’t have worked with the other utilities on site, as well as the cost of building 3no. boxes on site, and also the unsightly nature of each property having a telecoms box on their land.• Martyn went on leave and Dougie Trail took over our project. After discussion, Dougie provided us with a new plan L_SB-01P, as attached. We installed the ducting on site as per this plan.• The civils were then installed by the Openreach contractor in the incorrect place. They were installed as per the superseded design done by Martyn. I believe the civils install took place on a day when the Openreach guys were on strike, which is probably the reason it happened, a mistake by the civils contractor.• To get over the mix up, Dougie asked us if we could install a two way box within the site to allow the cables to turn in the different directions required as they enter the site. We did this.• Martyn came to site to check the current situation and he said that the works were not right, and they haven’t been installed to plan. The two way box couldn’t be used on site as the equipment wouldn’t fit in it. I explained what had happened, and that we had put the box in to help out with the situation and get over the issue. Martyn said that we need a bigger box on site, but we explained we haven’t got the room to install a box of that size, with the other services in the area.• I spoke to Dougie Trail and Tony Baker about the issue, and they both said that the install would be acceptable as the box on site is just a through box for the cabling, and the main equipment can be located in the box outside the site. We are due to have people move in in January 2023, so we would really like the cables pulled in and works carried out as soon as possible. Please let me know your thoughts on this, and if you need any further information.”[20]That email was also at SB7-SB8. On 6 February 2023, at the meeting between the claimant and Mr Sohanpal recorded in the document at pages 191-202, to which we return in paragraph 69 below, the claimant said (as recorded at the top of page 198) that he had received a telephone call from Mr Butler at 8.45am on 15 December 2022. That part of that document was not subsequently said by the claimant (at any time, including in the hearing before us) to be inaccurate, and in any event it was probably correct because of the next relevant event, to which we now turn.[21]At 9.07am on that day, 15 December 2022, Mr Butler responded to the email which we have set out in paragraph 19 above in the following manner (at the top of page 206 and again at SB7). “Hi Shaun thanks for giving me the detail below. I have spoken to Martyn and he has agreed we will go with a 2 box rather than changing it and he will work with you around making sure it is to quality spec, again sincere apologies you have been caught up in the confusion. Thanks for your support.”[22]At the top of page 198, it was recorded that the claimant had told Mr Sohanpal that he had at 9.15am called “Shaun”, i.e. Mr Shaun Murphy. What the claimant and Mr Murphy said to each other during that call was then discussed by Mr Sohanpal and the claimant. The whole of the passage from the top of that page (i.e. starting with question 7 and the answer given by the claimant to it, up to the end of the answer to the question numbered 10) was relevant. The passage was as follows (with underlining added by us). “Q7. Talk me through the phone conversation with Shaun Murphy. A7. Martyn called Shaun on 915am after receiving a call from Dave butler at 845am 15/12/2022 of a complaint about him. Martyn was allegedly told he was being unreasonable, Martyn asked for Dave butler to come to site but Dave was allegedly too busy and was asked to contact the DRM. Martyn spoke to Sean(developer) and asked how he can move forward and need to work together after receiving the complaint. Martyn explained to Shaun that he needs to build two boxes and Shaun has refused to do the work because of a previous NSR (Doug) had promised work to be done but couldn’t as Martyn has explained in detail. Harps [i.e. Mr Sohanpal] showed Martyn a copy of the email [that is the email which we set out in paragraph 24 below.] Q8. Please explain the complaint email A8. I spoke to Sean and Martyn [it would have been rather more clear if that had been “I”; we do not repeat this comment but it was applicable throughout the notes of the meeting of 6 February 2023] explained to Sean that the work which is done is wrong. Explained the 4 box needs to go in. Martyn explained that the DRM could get involved and it’s not costing you anymore by doing the work this way. Sean only wanted it done his way and Martyn wasn’t being flexible [We note that it is unlikely that the claimant himself said that he was not being flexible, so this may be a comment made by either Mr Sohanpal or Mr Vaughan, the note-taker, to whom we refer further in paragraph 68 below.] Martyn said he said to Sean that he is happy to work with him but Sean wanted to work with a different NSR/FBC . Q9. HOW WAS YOUR BEHAVIOUR ON THE PHONE A9. Martyn didn’t swear and didn’t shout, Sean didn’t want to listen, and this is how the breakdown happened. Q10. Did you contact the DRM A10. Martyn asked Dave Butler to contact the DRM as there may be some comebacks after the call or even before the complaint come in. Martyn had requested for Dave Butler to come out to help resolve the issues but Dave Butler was unable to due to the fact he was managing & running two teams”.[23]We could not find those notes to be a wholly comprehensible or accurate reflection of what was said by the claimant in response to the email from Mr Murphy to which we now turn, but we saw that it was apparently the claimant’s own initial recollection, albeit only on 6 February 2023, so over seven weeks later, that on 15 December 2022, that he had “explained to Sean that the work which is done is wrong. Explained the 4 box needs to go in.” That showed that if the email from Mr Butler sent at 9.07 to Mr Murphy, which we have set out in paragraph 21 above, was accurate, then the claimant(1) at 8.45am on 15 December 2022 said to Mr Butler that he accepted what Mr Butler proposed, namely a “2 box”, which was not what he, the claimant, had originally proposed, and then(2) called Mr Murphy and said something which was plainly to a very different effect, namely that there instead had to be what he, the claimant, had originally proposed, and that was a “4 box”.[24]Mr Murphy then sent the following email to Mr Butler. It was at page 205 and at SB6-SB7, and was sent at 17:24 on 15 December 2022. “Hi David, Thanks for coming back to me on this. Martyn rung me up today and started talking about how we should have followed the design and I told him we did follow the latest design that we were provided by Openreach, it had changed from the original one, which he doesn’t seem to grasp. Then he started saying that Dougie was a trainee and shouldn’t have changed it because he wasn’t experienced enough. I told him that I believed that Tony Baker had helped with the redesign and that Dougie was the representative from openreach who was dealing with our project, it’s nothing to do with my company whether he is a trainee or not, we just do as we are told. I don’t really know why he was going on about all this again after we had argued about it all before when he visited site, but we ended up arguing on the phone again today about it all. Sorry to cause you problems, but I don’t want to deal with Martyn anymore, he has been a problem to deal with since the start. He is nothing but awkward and unreasonable. Would it be possible to move forward with another manager please? Kind Regards, Shaun Murphy Site Manager”[25]There were two further emails in that chain, which were also of such significance that we set them out here. The first one was sent by Mr Butler to Mr Murphy at 17:02 on the next day, 16 December 2022. It was at SB6 (and at the top of page 205 but without the date or time it was sent shown), and was in these terms. “Hi Shaun, Really to sorry to hear this, I was really hoping we had now resolved this! Martyn’s new manager has landed I have bought him up to speed and will look to ensure you get support by an alternative FBC. Thanks”[26]On Monday 19 December 2022, at 12:44, Mr Murphy replied (at the top of SB6; this email was not in the hearing bundle): “Hi David, Much appreciated, thank you. When do you think we will be contact [sic] by the new FBC please? Because we need to back fill and finish off the areas in the front around the box this week if possible, but we don’t want to do that in case we have to change anything. Thanks, Shaun”.[27]The claimant addressed this situation in paragraphs 49-50 of his witness statement (not, as stated in the paragraph 73(a) of the closing submissions of Ms Step-Marsden, paragraphs 49-51 of that statement). Those were in the following terms. ‘49. Taking these complaints in turn, Dave Butler was aware of the issues raised by Shaun Murphy as conversations had been had in the days prior relating to the confusion that had occurred with Shaun Murphy, the site agent and the developer (his father). At this time, I was off sick and my work was being covered by Douglas Trail. Upon my return, it was evident that Douglas Trail did not understand that the plan and contract had been signed and dated by the developer. A replan was put in unnecessarily and the developer did not want to build an extra box which was wrong due to Openreach planning regulations. The customer did not want to pay for this. Douglas then changed the plans without updating the then current plans in the hard copy folder or online. When I then went to the site to see how things were progressing, the developer then informed me that all the new plans had now been cleared with by Douglas Trail, to which I responded “he’s only a trainee and was only covering in my absence”. The then developer became unhappy with the situation and was aggressive alongside his son. 50. Before this complaint was made, I had asked Dave Butler to attend a site meeting with me after the developer had broken the contract from the plan which I produced before I had my shoulder operation. At the time, Dave Butler said that he was too busy to support me, so I was once again left with no assistance and again feeling over pressurised and deflated. I pointed out to Dave Butler that he had not followed the correct process and procedure with regards to this complaint as it should have been given to the Local Development Relation Manager, Rob Dyke.’[28]Mr Butler did not deal with this situation in his witness statement: his short witness statement dealt only with events of 2021 and 2022 relating to the claimant’s health. We saw that there was at SB10 (only) an email from Mr Butler to Mr Sohanpal, sent at 11:41am on 16 December 2022, in which he enclosed the emails which we have set out in paragraphs 19, 21 and 24 above, and said: “We will need to come up with a plan to support this customer.” That was uncontroversial and was consistent with the email which we have set out in paragraph 25 above from Mr Butler to Mr Murphy, and Mr Butler was (understandably) not cross-examined on it. However, Mr Butler was (also understandably) cross-examined by reference to what was said in paragraphs 49 and 50 of the claimant’s witness statement. Having initially thought that he had himself dealt with that aspect of the case in his witness statement, Mr Butler then remembered that Mr Liam Smith’s witness statement dealt with it, and after being referred to paragraph 22 of Mr Smith’s statement (which we have set out in paragraph 140 below), he said that what Mr Smith said in that paragraph was accurate. In fact, that paragraph was in large part (although it was not only) a description of the contents of the email at page 343, which Mr Butler had sent to Mr Smith, the contents of which we concluded (having heard the claimant, Mr Smith and Mr Butler give evidence) were true. Those contents were as follows. “Subject: MY - HDF/296 & L/SB/01P Hi Liam, Hope your are [sic] well, as promised I’m coming back to you regarding the question around Martyn reaching out to me specifically for help with HDF/296 and L/SB01P. As mentioned on the phone I do not recall Martyn requesting me to specially help with these sites. I have also searched my mailbox for any emails around this, unfortunately Martyn does generally CC’d his line manager on what feels like every single one of his communications with his sites. This made it very difficult to filter through an emails [sic] I needed to actions, [sic] as an example I have over 36 emails around just one of his sites HDF/296 alone. Many times I did ask him to send me direct any I needed to act upon and not send me the others, he instead just steered towards sending me the emails with me as a To: rather than CC, making it more challenging! I specifically asked him a few times, to ensure he rings me if he needs support, one so I can ensure he is ok, and secondly so nothing gets lost in the ether of email. I have searched the emails for HDF/296 and L/SB/01P, I cannot find any specific emails where Martyn has asked me directly to call him or visit him to help with that site. If you need anything else please let me know.”[29]As for the possibility (raised by the final sentence of paragraph 50 of the claimant’s witness statement, which we have set out in paragraph 27 above) of “the Local Development Relation Manager, Rob Dyke” being involved in the situation relating to the Cambridge Road, St Albans site (to which we refer below as “the Cambridge Road site”), on 22 February 2023, at 11.48, the claimant sent the “Chronicle of Events” of which there was a copy at pages 385-392, and a document containing what was at pages 218 and 219 (both of which pages contained only text created by the claimant), which, on page 218, contained the following passage. “Page 7: Q7: A7: Dave Butler should have refereed this to the DRM Rob Dyke, due process adhered too. The complaint should have been investigated by the DRM before raising a misconduct charge through HR. The DRM should of investigated complaint and spoken to the developer, looking into the issues on the site and the other decisions that were made by two other NSR’s whilst I was off sick. Mistakes have been made by both parties and the developer did not want to stick to the signed agreement signed and dated by him. If Dougie followed the correct procedures and updated what the customer requested on his visit, he should of re- drawn and re-planned the onsite and offsite plans which were never updated on my folder. A nonexistent hand over for all my sites when I returned back to work via an email did not take place, this added extra stress and pressure which resulted in a breakdown of communication. Page 8: Q8: A7 [sic]: I explained that the DRM could get involved but by proposing his second prop would more money for Openreach for the offsite civils and potentially causing blockages within the duct onsite at a later date when the builders have left site thus the problem in rectifying the missing boxes and too many 90 degree bends would defiantly cost the company money to rectify in the future as it is non- standard with too many bends on which should have been a straight run with boxes. Page 8: Q10: A8 [sic]: Dave Butler refused to meet the developer with me to resolve the issue. This then made it difficult for both parties in resolving the issue in conjunction with involving the DRM Rob Dyke and not following due process.”[30]Mr Sohanpal and Mr Smith both gave evidence about the role of a “DRM”. Mr Smith said that there were two kinds of “DRM” employed by the respondent on 15 December 2022. The first one was dedicated to dealing with the top 10 developer clients of the respondent, and that DRM (said Mr Smith) had no part to play in the situation relating to the Cambridge Road site. The role of the second kind of DRM (who was somewhat further down the respondent’s hierarchy than the DRM who dealt with the top 10 developers), of which Mr Dyke was one, was (said Mr Smith, as noted by Employment Judge (“EJ”) Hyams) “technical, regarding processes”. Mr Sohanpal was pressed on the question of the role of Mr Dyke and other DRMs at Mr Dyke’s level and what he (Mr Sohanpal) said indicated that the job of a person in that role was to deal with technical issues, or for example a problem with the stores, meaning, we thought, something to do with the supply or availability of parts for installation. Mr Sohanpal was emphatic in saying that the DRM had no part to play in the situation which was described by Mr Murphy in the email which we have set out in paragraph 24 above, and that if the issue (namely the complaint of Mr Murphy and his request that the claimant cease to be the FBC for the Cambridge Road site) had been referred to the DRM, then the DRM would have referred the issue back to him, Mr Sohanpal, on the basis that it was a conduct issue.[31]We accepted that evidence of both Mr Smith and Mr Sohanpal, and we preferred it to that of the claimant, in regard to the possibility of the dispute between the claimant and Mr Murphy being resolved by Mr Dyke, or any other DRM. We did so because we found what they said to be more likely (and therefore on the balance of probabilities) to be true, not least because we accepted that the dispute arose only because of the claimant’s conduct, and we agreed that the dispute about that conduct could be resolved only by the respondent, as the claimant’s employer, deciding what to do. It was not a situation in which there was a need for an impartial arbiter: it was, rather, a situation in which the claimant had done something which was (apparently; in paragraph 33 below we state our conclusion on the question whether it was in fact) contrary to what he had been told by his former line manager who was nevertheless, we concluded on the evidence before us, responsible for dealing with this particular situation (and we saw that there was no contention advanced by or on behalf of the claimant that Mr Butler was not acting for the respondent in the situation). That was, plainly, an internal problem for the respondent, in that it had an employee whose conduct had (it had been reported by Mr Shaun Murphy acting on behalf of J.Murphy Contractors) had a seriously damaging effect on the respondent’s relationship with J.Murphy Contractors. That was because if the claimant had acted in a manner which justified what Mr Murphy wrote in the email which we have set out in paragraph 24 above, then the claimant had plainly undermined that relationship for no ostensibly good reason.[32]When deliberating, we realised that the final sentence of paragraph 49 of the claimant’s witness statement (which we have set out in paragraph 27 above) was the first (and as far as we could see the only) place where the claimant asserted that “The then developer became unhappy with the situation and was aggressive alongside his son.” The claimant was not asked about that in cross-examination, however. On the other hand, Mr Butler was not cross-examined about the accuracy of his email sent at 9.07am on 15 December 2022 which we have set out in paragraph 21 above, and at no time did the claimant say that that email was inaccurate.[33]In all of the above circumstances, i.e. given all of the evidence and factors to which we refer above, we concluded that33.1 the contents of the email from Mr Butler to Mr Murphy sent at 9.07am on 15 December 2022 set out in paragraph 21 above were accurate; and33.2 what the claimant said to Mr Murphy in the telephone conversation which led to Mr Murphy’s email sent at 17:24 on 15 December 2022 which we have set out in paragraph 24 above was said either(1) out of annoyance on the part of the claimant arising from the fact that what he believed should have been done had not been done (the use of a 4 box rather than a 2 box), or(2) because the claimant genuinely believed that what Mr Butler had agreed with Mr Murphy (which was that the solution proposed by Mr Trail, which had been acted on, was apt, so that there was no need to change what was on 15 December 2022 in place at the Cambridge Road site) should not remain in place.[34]However, in our judgment, whatever was the reason for the making by the claimant of his telephone call of about 9.15am on 15 December 2022 to Mr Murphy, what the claimant said in that telephone call was likely to damage the business interests of the respondent, and the claimant knew that.[35]In addition, we could not accept that there was any risk of the respondent acting unlawfully by leaving in place the solution which had been devised by Mr Trail, and we concluded that the claimant’s conduct was the result of anger at the fact that his proposed solution had not been adopted and that of Mr Trail had been endorsed by Mr Butler. That anger was increased by the fact that the claimant had perceived Mr Murphy’s email of 14 December 2022 which we have set out in paragraph 19 above to be a complaint about his (the claimant’s) conduct or competence, or both. The situation concerning a site in Harpenden[36]What then happened was that the claimant went to the site in Harpenden which was the cause of the second complaint email sent to the respondent on 15 December 2022. That email was sent to Mr Sohanpal at 15:10 on 15 December 2022 by Mr Steve Smith, the Customer Care Manager at a site in Harpenden called the Westfield Allotments Site, to which we refer below as “the Westfield site”. As is evident, that email preceded the email from Mr Murphy which we have set out in paragraph 24 above. The text of that second email of complaint was at page 203 (without the date and time when it was sent shown) and at SB4-SB5, (where those things were shown) although the whole of its text was on SB4. Taking it slightly out of sequence chronologically, we set out its text in the next paragraph below, after which we(1) set out Mr Sohanpal’s reply to it,(2) refer to the evidence before us about what happened at the Westfield site on 15 December 2022, and(3) state our findings of fact in that regard. The text of the second complaint email and Mr Sohanpal’s reply to it[37]The text of the second complaint email was as follows. “Good afternoon, I hope this email finds you well. I would like to bring to your attention of an avoidable issue on my site today at Westfield Allotments. We had 3 engineers here who were extremely helpful and were working as you would expect. Another of your engineers who I believe is named Martyn York came onto site and caused a lot of avoidable upset. He was in my opinion extremely rude and abrupt not only to my staff but to your fellow engineers. I have occupants moving in today so to hear obscenities and excessive loudness is not acceptable. I am sure you can understand that I won’t accept this type of behaviour and most certainly wouldn’t expect my staff to behave like this. Can this please be addressed so that this does not happen again. Please feel free to give myself a call if you wish to discuss further.”[38]Mr Sohanpal replied to that email almost immediately. His reply was also on SB4, and was sent at 15:23. It was as follows. “Hi Steve. I’m very well and trust you are too. I’m sorry that you’ve had cause to complain about this incident onsite. Please rest assured that this is not usual behaviour and I do not expect any of my team members to behave in such a way. I’ll be investigating the matter to ensure nothing like this happens moving forward. I’d like to offer my sincerest apologies. I will address the engineers involved and reiterate their responsibilities towards our customers & our company. Should you need anything else please don not [sic] hesitate to contact me. Thanks” The most contemporaneous document evidence before us about what happened at the Westfield site on 15 December 2022[39]The most contemporaneous document relating to the events of 15 December 2022 at the Westfield site was the letter at pages 175-176. That letter was (see our findings of fact stated in paragraphs 42-48 below) prepared by Mr Sohanpal to give to the claimant on 16 December 2022, but it was not given to the claimant because he instead started a period of sickness absence on that day.[40]Mr Sohanpal had, by 15 December 2022, been the claimant’s line manager for only two weeks. He was new to the role of Patch Manager, and had only just taken over from Mr Butler as the claimant’s line manager. Mr Sohanpal had not before then carried out a disciplinary investigation as a line manager. He started the letter of 16 December 2022 at pages 175-176 with the following text. “Dear Martyn, Reason/s for suspension I’m writing to let you know that from 16/12/2022 you’re suspended from work until further notice while investigations are carried out into the allegations of misconduct. In particular, it is alleged that: 1. Gross breach of our standards of behavioural policy - On 16.12.22 I received a complaint from a customer via email at 15:10 detailing brand damaging behaviour consisting of foul language, intimidating behaviour, and bullying of another Openreach colleague. I also received a phone call from a patch lead David Flynn at 14.58 voicing his concerns of the event detailed above that had taken place. 2. Gross breach of our standards of behavioural policy - On the 17.12.22 I was advised of a 2nd letter of complaint by David Butler when we met in the office 08:15am. I was passed on a 2nd letter of complaint from another customer on the 17.12.22 at 11.41am by David Butler, stating their discontent with your customer relations and requested being moved to another FBC, again brand damaging. We may change or add to these allegations as appropriate due to our investigations.” Mr Sohanpal’s evidence and other evidence about the events preceding the meeting between him and the claimant of 6 February 2023[41]Mr Sohanpal made two witness statements. The first was approved by him on 3 April 2025 and the second was put before us and approved by him at the start of his evidence, which he gave on Tuesday 26 August 2025. He adopted both of those statements as his evidence in chief. In the second statement, he testified to the documents in the supplementary bundle and the dates and manner in which he sought and obtained the evidence on which he relied in deciding that the claimant should answer to a disciplinary charge of gross misconduct. The reason why that was done was because the dates and times of the sending of a number of evidentially critical emails were not shown in the hearing bundle. In addition, the hearing bundle did not contain the notes which Mr Sohanpal said in his second witness statement he had made of what Mr Mark Matthews, an engineer employed by the respondent who was present at the Westfield site on 15 December 2022, said to him about the relevant events of that day, and in Mr Sohanpal’s second witness statement he gave evidence about those notes: when they were made, and in what circumstances. We record here for the avoidance of doubt that it was clear that Mr Sohanpal had contacted Mr Matthews at the same time as contacting the two other engineers who were present at the Westfield site on 15 December 2022 at the time of the situation about which Mr Steve Smith wrote in his email which we have set out in paragraph 37 above. We refer to those other engineers above: they were(1) Mr Cripps and(2) Mr Flynn, to whose telephone call on 15 December 2022 Mr Sohanpal referred in paragraph 7 of his first witness statement, where Mr Sohanpal said this. “I first became aware of the 15 December 2022 incident involving Martyn when I received a call from Dave Flynn, who was my Patch Lead. A Patch Lead supports the Patch Manager in running the team and helps to make sure that everything goes smoothly. Dave told me that Martyn had been involved in an altercation with Gary Cripps on site and that Gary had locked himself in the back of his van to escape from him. I remember feeling quite shocked when I heard that, as I’d never heard of a situation before where somebody had felt it necessary to lock themselves in their vehicle to escape a colleague. Dave also said that one of the developers was extremely unhappy with Martyn’s behaviour and that I would likely be hearing from the developer later in the day.”[42]That paragraph, which we accepted, taken together with the fact that the email from Mr Smith whose text we have set out in paragraph 37 above was sent at 15:10 on 15 December 2022, showed that Mr Flynn’s telephone call of 14:58 to which Mr Sohanpal made reference in the second paragraph of his draft letter which we have set out in paragraph 40 above (i.e. numbered paragraph 1 of that draft letter), was made on 15 December 2022 and not, as stated in that second paragraph, 16 December 2022. It was clear too (not least because the letter was correctly dated 16 December 2022) that the references in the second numbered paragraph of that letter to 17 December 2022 should have been to 16 December 2022. Mr Sohanpal was pressed in cross-examination on the fact that what he said in paragraph 7 of his first witness statement went considerably further than what was said in the final sentence of the first numbered paragraph of the draft letter at pages 175-176, but, we repeat, we accepted the whole of the content of paragraph 7 of that statement.[43]In paragraphs 8-10 of Mr Sohanpal’s first witness statement, he described how he(1) sought advice from Mr Butler and “HR”,(2) was “appointed as the investigating manager”, and(3) “phoned [the claimant] and asked him if he could drop in to the office for a chat the next day.” In paragraph 43 of his witness statement, the claimant said that it was only late in the morning of the following day, 16 December 2022, that he was contacted by Mr Sohanpal asking him to ‘come to the Leavegrave office for a “quick chat”.’ The claimant continued (with underlining added by us): “My immediate thought was that this would be to discuss the argument that had occurred on site with Gary Cripps the previous day, so I asked Harps Sohanpal if this was what the meeting was about, but I was told it was just a quick chat and a coffee. I was still sceptical about this, especially as Harps Sohanpal was seemingly playing this down, so I asked if my trade union representative needed to be present, to which Harps Sohanpal said no. Not only was I concerned about the meeting itself, but I was far too busy to be leaving site as I had a further four sites to visit that same day. Though Harps Sohanpal insisted that I attend this meeting.”[44]Given that there was no such thing as a “Leavegrave” office, since the respondent had an office at Leagrave and not “Leavegrave”, the claimant had plainly not proof-read his witness statement thoroughly before approving it. The name “Leavegrave” was first used in the document which was first put before us in the form of the document at pages 385-392 to which we return in paragraph 100 below. We concluded that that term may have been used first by the claimant’s wife, who, the claimant told us and we concluded, had at least helped to write that document. The word “Leavegrave” was then used by whoever wrote the claimant’s witness statement. The fact that the word was not corrected was a small clue to the reliability of the evidence in the claimant’s witness statement. In any event, we did not need to decide whether or not Mr Sohanpal telephoned the claimant in the evening of 15 December or the morning of 16 December 2022, asking him to go to the respondent’s Leagrave office for a “chat”, nor whether it was said by Mr Sohanpal that it was for a chat, or just a quick chat (whether with or without a coffee).[45]When deliberating, we noticed a note at the bottom of page 203 which was not referred to in any witness statement, and was not the subject of any oral evidence. Below the text which we have set out in paragraph 37 above, there were these words: “After speaking to Steve smith he confirmed the information above via a call on 16/12/2022”.[46]That note was sent to the claimant at the latest on 17 February 2023 in the manner to which we refer in paragraph 93 below. Returning to what happened on 16 December 2022, in paragraphs 11-22 of his first witness statement, Mr Sohanpal described what happened next. Apart from the content of paragraph 22 of that statement and the word “lengthy” in paragraph 17 of that statement, we accepted the evidence in that passage and preferred it to that of the claimant in paragraphs 46, 47, and 52-56 of his witness statement. In addition, having heard from Mr Butler as well as the claimant about the things claimed by the claimant in paragraph 52 of his witness statement to have been said by Mr Butler at the meeting of 16 December 2022, we rejected the claimant’s evidence in the second and third sentences of that paragraph. The rest of that paragraph did not describe the events of that day, and was in part argument.[47]Paragraph 22 of Mr Sohanpal’s first witness statement concerned the timing of the events described in paragraphs 11-21 of that statement, and we concluded, having heard oral evidence from Mr Butler about those timings, as well as oral evidence from the claimant and Mr Sohanpal in that regard, that the events took place over a rather shorter period of time than both the claimant and Mr Sohanpal said. We also concluded that we did not need to decide how long the events took but we saw that the claimant said in paragraph 56 of his witness statement that they took “Nearly 4 hours”, and we found that impossible to believe, which in turn was one of the factors which as far as we were concerned undermined the credibility of his evidence.[48]Paragraphs 11-21 of Mr Sohanpal’s first witness statement were in these terms. ‘11) On 16 December 2022, Martyn arrived at the office for the chat we had arranged. I thanked Martyn for coming in, and offered him a coffee, which he declined. I explained to Martyn that David Butler would be joining us as support for me, as I was new to the role. Martyn was distinctly unhappy about this. I got the impression that him and David Butler had not had the best relationship. 12) The three of us sat down in the small meeting room in the office. I explained to Martyn that we’d received formal complaints about his behaviour from two developers. The content of the complaints were shared with him. I informed him that I had also received a call from Dave Flynn to complain about his behaviour on site on 15 December 2022. 13) At that point, Martyn became quite aggressive and agitated. He tried to blame his behaviour on a number of other people. He accused us of bringing him in under false pretences. I explained to Martyn that we had brought him in to have a chat about the allegations and to see what he had to say about them. I told him that I would be conducting an initial fact-finding investigation, and that any decision to refer for disciplinary action would not be made until all the facts had been ingathered [sic]. After I finished explaining this, Martyn said that he needed a break. I said that was no problem. 14) Around ten or fifteen minutes later, I saw Martyn walking about outside on his phone. I went outside to go and check on him. When I approached him, he cited his mental health and said that he felt victimised. He did not mention any specific condition. He told me that he didn’t want the meeting to continue any further. 15) At this point, David Butler came outside to see if everything was okay. Martyn repeated that this meeting wasn’t good for his mental health. I remember he turned to David and said, “you know all about this”, but I was not aware of what he was referring to. 16) Martyn had his keys in his hand while he was talking to us. All of a sudden, he said “the way you two are making me feel, I’m going to jump into the van and drive straight into oncoming traffic.” 17) That raised serious alarm bells for me and David. I remember we both looked at each other in the second after Martyn said that. The office is right beside a very busy main road, and I felt like it was possible that Martyn was being serious. I made the decision that I needed to take his keys off him for his safety and to protect the public. A vehicle is the most dangerous tool that we provide engineers. I asked Martyn for his van keys. He initially refused and said that he wanted to drive home. I told him that I couldn’t let him do that, for his welfare and for the welfare of others. We discussed the issue of his keys for a lengthy period. After a lot of toing and froing, he finally handed his keys over. 18) I asked Martyn if he was okay to come back inside and continue the meeting. He said no, and that he just wanted to go home. I asked him whether, because he had mentioned his mental health/driving into oncoming traffic, he wanted to be referred to the company mental health services team. He said that he was aware of them and had spoken to them previously, but that he had received “conflicting information” and that he wanted to stick with his own doctors. I asked Martyn to come back inside to figure out how we would get him home. I said that we wouldn’t discuss anything more about the allegations. He agreed to come back inside. 19) When he arrived back inside, I recommended that due to the way he was feeling, he should contact his GP and go on sick leave. I said that I felt like he could do with some proper support. I explained that, in my view, conducting a fact-finding investigation in the current circumstances would not be beneficial. I said to Martyn that I would not progress the investigation procedure until he was back from sick leave. I told him that the other option was that I suspend him pending investigation. 20) My original plan had been to suspend Martyn after our initial chat, unless he had provided me with compelling evidence that demonstrated that the allegations we had received were untrue. I had pre-written a suspension letter for that purpose that I had intended to give him. I had concluded that suspension was likely going to be appropriate, as some of the allegations involved people that he would be in daily contact with if he was at work. I felt that, to maintain the integrity of the investigation and to protect the well-being of those individuals, suspension was the only real option. 21) Martyn agreed that he would go off sick. I remember he said something like “I know this will all just be done behind my back”. I didn’t know what he meant by this. He went off and made a number of calls. I remember I spoke to his partner on the phone at one point and informed her that I would get him home. Neither Martyn nor his partner mentioned anything specific about his mental health during this time. After that, we got in my van, and I dropped him off at his house. I told him to keep his work phone on and remain contactable.’[49]We saw that the claimant said in paragraph 53 of his witness statement that by being told that the meeting was for a “quick chat”, he was “deliberately lied to by both managers”. The claimant repeatedly said to us that that deliberate lie had led him to distrust the respondent and justified his stance in relation to attendance at meetings without a trade union representative present.[50]It took Mr Sohanpal four days to send the email at page 209 to Mr Flynn, Mr Matthews, and Mr Cripps: it was sent at 2:07pm on Tuesday 20 December 2022. However, the first two of those four days were Saturday 17 and Sunday 18 December 2022. The email was, in any event, in commendably neutral terms. Its text was this. Hi all, Due to customer complaints & feedback from yourselves received on Thursday 15 of December, I have been asked to investigate what happened onsite at Westfield allotments. Could you please provide me with separate independent accounts of the incident including as much information as possible please so we can work out what occurred & take necessary action to ensure nothing like this happens moving forward please. Any issues with the ask please let me know.”[51]Mr Cripps responded later on that day, 20 December 2022, at 18:19, in an email (sent only to Mr Sohanpal) of which there was a full copy at SB13 (and of which there was a copy at page 208, but without the date and time of sending shown). While we could not understand some of the technical aspects of it, the whole of its text was relevant, and was (for the avoidance of doubt verbatim, including its precise punctuation, or in some parts, lack of punctuation) as follows. “When I arrived on site I had introduced myself to the builder which then brought to light the joint box I should be building the onsite splitter in was not built so I contacted Dave Flynn and made him aware he replied that Mr York had confirmed this had been built ,Dave then replied I will give him a call but had no luck reaching him whilst he was trying to make contact I looked for this Agg node that should have been 101 meters from where the splitter was to be installed but proving hard to find under snow I did find it but was Approximately 500-600 meters away so called Dave again and suggested he got the cablers on this as the job pack is a very long way out which he did Dave then tried calling Mr York again which managed to contact this time so with all three of us on the phone he suggested installing the splitter in a completely different joint box which I asked Dave if he was happy with this which he replied ok that’s fine so I then cracked on with installing the splitter and two CBTs and all was going well until Mr York arrived when he approached me asking why I’m not happy with building the network in a different joint box I replied with I am trying to follow a job pack and this cant be done because the joint box is not built which he replied the job pack is only a guide we never build to job packs which I disagree with I always build to job packs unless instructed different Mr York insisted he was right the job packs are only a guide I then pointed out that we have no steel work installed in brick joint box where we are fitting a CBT he asked me to show him which I did I also pointed out that this is a regular occurrence for Mr York’s site that there is no steel work fitted and I keep fitting plastic support tube for the cables and on some occasions he gets the steel work fitted and we change it which is frustrating because we are doing this twice he insisted he had checked this box but I replied you clearly haven’t which he replied the builder had lied to him because he had sent a picture which I said he hasn’t checked which he insisted he had but kept quoting the builder had lied whilst this conversation was happening Mr York was getting closer and closer in my face my personnel space which I had asked him not to do and to get out of my face which he refused to do so after asking him several times I then remove myself from this situation and went into the back on my van for some time out but Mr York keep coming over to my van repeatedly trying to push my buttons so I then had to lock myself in the back of my van away from him. As you can see here there are issues with the work needed to complete the work on this site and again, I’m here early in the morning jointing in the dark with flood lights on my own so we meet the FOD date where are the team I have told yourself and Dave butler I’m very stressed with the amount of work you are giving me and expecting me to complete some of the guys around me are very lazy and untidy and its a know fact that you give me more work than others because I crack on and get the work done this is not fair and this is causing unnecessary stress I seem to supply most of the stores and deal with most problems that arise where is the team work here . These are some of the issues It’s very clear to me I am under appreciated and abused for my goodwill this can’t carry on I will take some time over Christmas to think about my options here because I’m not being heard”.[52]Mr Flynn replied with a little less alacrity. At 7:32am on 22 December 2022, he said (at SB9 and, without the date and time of sending shown, at page 204) this in reply to the email of Mr Sohanpal set out in paragraph 50 above (copying in Mr Matthews and Mr Cripps): “When I arrived on site I started working creating a track joint so I was not privy to the conversation had between Gary , Martyn and site agent. When I returned to my van Gary was in the back of his with the door locked. Martyn was having words with the site manager about a box , he tried to get me involved I stated that it’s not my job to discuss boxes with builders that’s your job your the FBC . After that I returned to doing the track joint. Regards. P.S I already informed Dave Butler of this.”[53]Mr Matthews replied to the email of Mr Sohanpal set out in paragraph 50 above, with the email from Mr Flynn as the one to which Mr Matthews was apparently responding (since he, like Mr Flynn, responded to “all”, instead of just Mr Sohanpal), on the following day, 23 December 2022. That email from Mr Matthews was sent at 8:38am and was short. Its substantive text (which we take from SB15, which was the only place where the date and time of its sending was shown) was this. “When I got to site Gary was already set up and working, after a quick chat I moved to where I was working, (about 60 ish metre’s away). I noticed Gary and Martyn speaking to each other, Gary moved to the back of his van. I carried on working, Martyn appeared with some site people and discussed the lack of ironwork in the JF4, there was a resolution and the work commenced.”[54]Mr Sohanpal’s second witness statement was inaccurate in saying in paragraph 5 that he received Mr Flynn’s email which we have set out in paragraph 52 above on 22 January 2023 (since that was plainly received by Mr Sohanpal on 22 December 2022), but we concluded that it was accurate in saying,(1) in paragraph 5 that he “invited David Flynn to an investigation meeting on 18 January 2023” (that was shown by the email sent by Mr Sohanpal at 9:23am on 18 January 2023 to Mr Flynn at SB18) and(2) in paragraph 4 that he “invited Mark Matthews to an investigation meeting on 18 January 2023” (that was shown by the email sent by Mr Sohanpal at 9.28am on 18 January 2023 to Mr Matthews at SB19) and that the notes which he, Mr Sohanpal, took of what Mr Matthews said at that meeting were at SB2-SB3. Those notes were of considerable significance, and were (in their entirety) in the following terms. “Can we just go over this to get some more detail please. Yes When I got to site Gary Cripps was already there set up and working. I was working around 50-60m away. Later, I saw Martyn York & Gary speaking to each other. Site was quite quiet that day so no heavy plant machinery was operating and due to the way site is you could hear voices carry further than you would normally expect. I did hear some ‘industrial’ language from both parties, voices were raised but there was no shouting. Martyn came over to where mark was working with the site managers and a ground worker– The JF4 had not been built correctly – site had to fix and resolve. Mark did witness – Gary & Martyn exchanging heated words – Gary was in back of his van with doors open, Martyn standing on the ground facing the back of the van. – mark could not hear what was being said – mark could tell they were both flustered & frustrated. Mark approached and asked Martyn to go speak to Dave Flynn (patch lead who was also onsite) – or for Martyn to go elsewhere (as to avoid any further antagonization). Mark spoke to Gary who said he didn’t need this extra stress from Martyn. Gary was visibly shaken. Martyn had his hand out and said can we get over this – but Gary was very upset and worked up and needed some time out and shut himself in the back of the van. Martyn left the vicinity and gave Mark & Gary some space, Gary was frustrated & began to take off overalls and was going to go home. Mark persuaded Gary to calm down have a cup of tea and by this time box issues had been resolved by site and work could continue. Gary, Mark & Dave finished the outstanding work.”[55]The final part of Mr Sohanpal’s second witness statement was also important, but not so important that we set it out here. It was paragraph 6 and was to the effect that Mr Sohanpal on 18 January 2023 spoke to Mr Cripps, who said that he was “happy with the email statement he had sent on 20 December 2022, and that he had nothing further to add or change. He explained that his account was as accurate and detailed as it could be, and had been sent while the incident was very fresh in his mind.” We accepted that evidence of Mr Sohanpal.[56]On 5 January 2023, the claimant said to Mr Sohanpal that he was well enough to return to work. On the next day, Mr Sohanpal suspended the claimant formally via the email at pages 177-178. That email contained the text of a letter which Mr Sohanpal had sent via email at (we could see from page 180) 10:56am on that day, 6 January 2023, but which the claimant’s wife, Mrs York, wrote in the email on that page, she could not open as it was “encrypted”. Mrs York also said in that email: “Please can you forward the document to Winston Richards (cc’d into this email) as the file does not permit me to forward it.” The email at pages 177-178 was copied to Mr Richards as requested, and was sent at 11:22 on 6 January 2023. The text of the email at pages 177-178 was an updated version of the letter at pages 175-176 to which we first refer in paragraph 39 above. It therefore also had the erroneous date of 16 December 2022 for the receipt by Mr Sohanpal of the email whose text we have set out in paragraph 37 above and the erroneous date of 17 December 2022 used twice in the second numbered paragraph. We saw that at the top of page 178, this was said. “Therefore, you’re to remain contactable during normal working hours and be available for work. The company may require you to carry out specific tasks or duties during your suspension. If you want to book any holiday or take any leave then you must get this authorised by your manager in the normal way.”[57]At page 181 there was an email from the claimant to Mr Richards, which was dated 11 January 2023 and was in the following terms. “After speaking to my manager Harps on Friday the 6th January 2023 with the intention of me returning to work on Tuesday the 10th January 2023, I was further informed by Harps that I will now be suspended pending an investigation into my contact with certain allegations. He also informed me that a letter of suspension would be sent to me on an email of my choice, this letter was received via my wife’s email but I am not able to send onto you because of legalities by Open reach. I therefore requested that the said letter was sent by Harps to you direct. May I also request all documents relevant to my suspension and the allegations associated with the said suspension be sent to you and me direct. Please can you do that on my behalf as my union representative. I do have grave concerns in regards to the said allegations and also the date of the start of the suspension. I look forward to hearing from you in order to discuss my concerns and how these can be addressed.”[58]That email dented the claimant’s credibility. It did so because Mr Richards had, as we say in paragraph 56 above, on 6 January 2023 been copied into the email from Mr Sohanpal setting out the text of the letter which Mrs York wrote that she could not read because it was encrypted. The claimant was cross-examined on the email at page 181, and EJ Hyams asked him to what “legalities” he was referring in that email. The claimant was unable to give a satisfactory explanation either for the use of that term or for implying in the email that Mr Richards needed the suspension letter’s text to be sent to him (Mr Richards).[59]On 23 January 2023, Mr Sohanpal sent the claimant the letter at page 182, inviting him to a meeting “to discuss the incident on site and any other issues that you’d like to put forward in connection with this matter”, and stating that “An outcome of this meeting may be Formal disciplinary action.” The letter also contained what we guessed was some standard text about “Getting extra help” in the form of “up to 4 face to face counselling sessions or a telephone counselling service” which could be obtained from the respondent’s “confidential Employee Assistance Programme (EAP)”.[60]On 25 January 2023, via an email sent from Mrs York’s email address and copied to Mr Richards, the claimant wrote that he had been “trying to contact my Union Representative but ha[d] been unsuccessful”, that having his “Union Representative present at the said meeting would be a necessity”, and that “as such”, the claimant was awaiting Mr Richards’ “response to [his, the claimant’s] request”.[61]That email was at pages 183-184 and on page 183, 5 minutes later, Mr Sohanpal replied: “Hi Martyn, this is just a fact finding meeting and union representation is not required at this stage .” On the following day, so 26 January 2023, at 15:11, the claimant responded (page 183) “My Union Representative (cc’d into this email) has asked me if this meeting can be rescheduled to the week commencing the 6th February 2023 so that he may attend.” Mr Sohanpal’s response was also on page 183 and was this: “Hi Lisa/Martyn, I will send a new invite to Martyn’s work email address. As you’ll all appreciate I’d like to conclude the fact finding as soon as possible so please reserve 6th Of Feb for 10.30 am and I’ll send an official invite shortly.”[62]That “official invite” was at page 185 and was sent to the claimant via recorded delivery on 29 January 2023.[63]On 1 February 2023, the claimant, copying Mr Sohanpal in, wrote to Mr Richards the email at the bottom of page 186, in these terms. “Please find attached meeting request letter received via special delivery post today from my manager. Please can you confirm to me and Harpit Sohanpal if this date and time is convenient for you as alternative arrangements maybe necessary.”[64]Mr Richards responded 49 minutes later in the email in the middle of page 186, the body of which was simply this: “Just checked my diary, I am fully booked for next week, I can Attend 13th 15th, or 16th Feb.” Mr Sohanpal was not copied into that email.[65]It took the claimant two further days (i.e. to 3 February 2023) to send on to Mr Sohanpal that short email chain, as could be seen from the email at the top of page 186, which the claimant sent to Mr Sohanpal, copying it to Mr Richards. In that email of 3 February 2023, which was sent at 14:43, the claimant said this. “Good afternoon Harps, Please find attached response I received from my Union Representative. I had hoped that he would have contacted you directly with a view to booking another suitable time and date. I do understand that he is extremely busy so in my opinion from reading the email attached that the rescheduled meeting for Monday the 6th February 2023 will be unlikely to take place as my Union Representative is not available. Please see dates he has provided and then we can all confirm one of these dates below.”[66]However, the purpose of sending that email was difficult to understand if what Mr Sohanpal said in paragraph 44 and so far as relevant paragraph 45 of his first witness statement was true. Having in paragraph 43 of that statement said that he was copied into the email at page 186 from the claimant to Mr Richards which we have set out in paragraph 63 above, Mr Sohanpal said this. “44) Later that day [i.e. 1 February 2023], Martyn phoned me to say that his union rep could not [attend] the meeting rescheduled for 6 February 2023. I did find this somewhat confusing, as Martyn had asked me to specifically reschedule for the week beginning 6 February so that his union rep could attend. I reiterated to Martyn that union representation wasn’t required at the initial fact-finding stage. Martyn became very irate on the phone with me and began shouting, telling me that I was wrong. He then put down the phone on me. I attempted to phone him back, but his phone had been switched off. 45) On 3 February 2023, I received an email from Martyn copying in his union representative. He said that he had hoped that his union rep would have contacted me directly to book another time and date. Why he had thought this would be the case I didn’t know.”[67]The claimant accepted in cross-examination that he spoke with a “raised voice” and that he was “frustrated” when he spoke to Mr Sohanpal in the conversation described by the latter in paragraph 44 of his first witness statement. Implicitly, therefore, the claimant accepted the truth of the substance of that paragraph. For the avoidance of doubt, we concluded that the paragraph was accurate.[68]The whole of paragraphs 46-48 of Mr Sohanpal’s first witness statement were of considerable importance to the claims of the claimant. We accepted those paragraphs in their entirety. They were in the following terms. “46) I phoned Martyn after I received this email. I wanted to ask him why he was so adamant that he needed to have a union rep present for the fact-finding meeting. I was reluctant to have the meeting rescheduled a second time, as Martyn had been very difficult to get in touch with/contact generally and I wasn’t convinced that if it was rescheduled again, that it would go ahead on that date. I had already specifically rescheduled around his union rep’s availability and now he had informed that the union rep was busy. I was aware that Martyn was currently suspended from work on full pay and that whatever the outcome, that could not go on indefinitely. 47) I was able to speak to Martyn and asked him why he was so keen for his union rep to be present at the meeting. He told me that he had concerns about the process being fair if his union rep wasn’t there. He did not provide me with any other reason for wanting his union rep to be at the meeting. In an attempt to move things along, I asked him if he would consider attending on 6 February if I was to ask another manager to attend as a third-party note-taker. I suggested Jonas Vaughan, as I knew that Martyn had worked with Jonas previously and that they had maintained a friendly relationship. I remember that Martyn brightened up and seemed quite happy when I suggested Jonas. He agreed to attend on 6 February as scheduled if Jonas was taking the notes. 48) I subsequently contacted Jonas, and he confirmed he was willing to attend to be the note-taker for the meeting.” What was recorded to have been said by the claimant at the meeting of 6 February[69]That meeting, to which we first refer in paragraphs 20 and 22 above, was recorded in the document at pages 191-202 to which we also refer in those paragraphs. That document was headed “Misconduct Investigation Report” and was in four parts: section 1, which was headed “Reason for investigation and specific allegations”, section 2, which was headed “Evidence”, section 3, which was headed “Notes of the investigation meeting”, and section 4, which was headed “Summary of facts and investigating manager’s recommendation”. We saw that those headings were completely logical, but did not quite mirror the respondent’s “disciplinary procedure” document at pages 149-163. We thought that the following (third) paragraph on page 154 best described the task which Mr Sohanpal was given: “The investigating manager (which could be your manager, HR, or someone in the security team) should investigate thoroughly and fairly, gathering all the facts (for example witness statements and any other relevant information) as soon as possible after they’ve become aware of the incident.”[70]The possible outcomes of the investigation included “[starting] the formal process”, which was to occur “[w]hen the investigation is complete and there’s a case to answer that isn’t appropriate to deal with informally.”[71]It was said on page 154 that “[a]ny meetings held with you or a witness should be documented or recorded (with your consent).” The notes of the meeting of 6 February 2023 were written up in a curious way, with (as can be seen from what we say in square brackets in answer 8 on page 198, which we have set out in paragraph 22 above) the claimant being referred to have said things either by being referred to in the first person singular, i.e. as “I”, or as “Martyn”. The passage which we have set out in paragraph 22 above was the complete record of what was discussed about the situation which led to the email from Mr Murphy of 17:24 of 15 December 2022 which we have set out in paragraph 24 above, so we say no more about that matter here.[72]As for the events at the Westfield site, the claimant was recorded to have said a number of things which we found to be significant. Taking them in the order in which they appeared in the notes at pages 195-197, they were as follows.72.1 In answer to the first question, Q1, which was “How should you liaise or speak to other members of staff within your team at Openreach?”, the claimant is recorded to have said this (page 195): “Martyn treats people the same as what he receives, Martyn understands the policies but accepts that it should be done respectfully and honestly and knows that poor behaviour reflects poorly on Openreach.”72.2 In answer to the next one, Q2, “How should you behave when onsite where external customer are present?”, the claimant is recorded to have said this (page 195): “Same as above, Martyn knows never to swear at customers but also says that being respectful is a two way thing.”72.3 In answer to the fourth question, Q4, “How should you behave onsite where developers are present?”, the claimant is recorded to have said this (page 196): “As above, but Martyn has said that developers do lie and are not honest all the time and this is where the breakdown has happened”.72.4 In answer to the next question, Q5, “How should you liaise with our customers such as a builder?”, the claimant is recorded to have said this (page 196): “Same as above, Martyn knows never to swear at customers but also says that being respectful is a two way thing. Every new developer are treated the same from the beginning, clean slate etc. Martyn has stated that customers are his priority”.[73]So, pausing there, we saw that the claimant said that73.1 he “treats people the same as what he receives”,73.2 he thought that “being respectful is a two way thing”, and73.3 “developers do lie and are not honest all the time and this is where the breakdown has happened”.[74]In our view the first two of those answers showed that if the claimant thought that he was being treated badly by a customer, then his behaviour was at risk of being a mirror of that bad behaviour, and the third one showed that if the claimant thought that a customer had lied, then that would cause a breakdown in the relationship, and he accepted that such a breakdown had happened here.[75]The sixth question asked, Q6, was “Talk me though in detail the day of 15th December from start to finish.” We saw the following relevant things recorded on page 196 and in the first part of page 197 (taking them in the order in which they appear there).75.1 “About 1pm Martyn arrived onsite, Dave Flynn was onsite (patch lead) and moaning about a cable missing. There was confusion onsite and frustrated engineers. Dave [we thought that that must have been meant to be Gary, i.e. Gary Cripps; but if not then it was both Dave and Gary] had the wrong job pack”.75.2 “Martyn approached Gary with the correct drawings and Gary shouted at MARTYN and compared him to be not as good as other FBCs. There was a disagreement between Martyn and Gary, and he didn’t want to engage with him and also swore at him. Gary said to Martyn there were other issues on site with iron work etc as the box that was open had been condemned but want done, developer had lied and was causing issue with Martyn and engineers”.75.3 “Martyn had asked Dave Flynn for assistance to liaise with site that Martyn had been lied to and Dave answered that Martyn was the fucking FBC and he had to deal with the issue. Martyn went back to site to try and calm the situation and spoke to a G/W to fit the ironwork who did this immediately.”[76]We were unimpressed by the use of the term “moaning” in relation to Mr Flynn, since that suggested a slightly disdainful approach on the part of the claimant. We found it hard to understand some of the text in those passages, but it appeared that the claimant saw Mr Cripps as having been critical of him. There was then plainly a disagreement between the claimant and Mr Cripps, during which, the claimant said to Mr Sohanpal on 6 February 2023 (in the passage which we have set out in paragraph 75.2 above), Mr Cripps swore at the claimant.[77]Pausing there, we ascertained during the hearing that Mr Cripps had worked for the respondent as an engineer for about two years by the end of 2022, and the claimant was employed as a senior engineer, several pay grades above Mr Cripps. That meant in our view that it was even more incumbent on the claimant to be courteous to Mr Cripps than it would have been if they had been on the same grade, even if Mr Cripps was critical of him.[78]We thought also that the reference in paragraph 75.2 above to lying was made by the claimant and not Mr Cripps: reading paragraph with the passage set out in paragraph 75.3 above, we thought that it was clear that the words “developer had lied and was causing issue with Martyn and engineers” were those of the claimant, and not Mr Cripps.[79]The statement by the claimant that Mr Flynn had said to him that he (the claimant) was “the fucking FBC” suggested to us that the claimant was implying either that(1) the liberal use of swearwords was normal practice, i.e. it was what is often called “industrial language”, so that his own use of swearwords was not culpable, or(2) Mr Flynn was in the wrong in using a swearword, so that he, the claimant, was not the only one who was in the wrong in using swearwords, but so were Mr Flynn and Mr Cripps.[80]We found most of the rest of the things recorded on page 197 to be relevant. The rest of the relevant contents of that page are set out in the text which we set out in the indent immediately below. As we have done throughout these reasons when setting out a passage of a document before us, we have set out the actual words used in precisely the same format as was used in the original text. We have here added underlining to show what we regarded as particularly important parts of the text. “Martyn and Gary argued over a box. Gary implied Martyn doesn’t know what he is doing. Martyn said he was stressed out and Gary said he couldn’t give a fuck Gary shouted at Martyn and said he doesn’t give a fuck about him, customers or FOD dates There was a developer watching and new customers who had moved in were onsite but not visible Martyn didn’t back down and Gary went to the back of his van while arguing after Martyn had shouted the bloody developer has lied Gary was stressed and was saying that he wanted to go home, Martyn explained that the customer would be let down if he did that and we are meant to be a team. Martyn spoke to people onsite who witnessed what happened and apologised Martyn called Dave Butler in the evening after leaving site around 3. He spoke to Gary after the argument who refused his handshake Harps has asked, would you have liked it if tables were turned ? Answer – Gary was swearing, spitting and shouting in his face so I didn’t want to back down. Harps has shown a email from Steve Smith at Westfield allotments (complaint) 3 engineers also have sent emails about the activities on the 15th December Harps is reading this out and will send copies over to Martyn once read out. Martyn has stated that the statements read out aren’t true at all especially Gary Cripps He said that Mark Matthews statement was more truthful Martyn has stated that he feels like this incident has been blown out of proportion and this is being used to get him out of the company”.[81]The only other part of the record of the questions and answers part of the meeting of 6 February 2023 to which we need to refer here is the fourteenth question and answer, which were at the top of page 199, namely: “Q 14: have you made or raised any complaint due to the behaviour of other Openreach employees. A14: No”[82]There was a summary written by Mr Sohanpal of the “key points” which he took the claimant to have made. That summary was on pages 199-200. It was all significant, and we saw that the claimant did not, when he responded to the record of the meeting in the documents which he sent to Mr Sohanpal on 22 February 2023 and to which we next refer in paragraph 92 below, correct that summary in any way. The “summarise[d] key points” were these. “1. You are aware of how to speak /liaise with other engineers 2. You are aware of how to Liaise with customers or Infront of customers 3. You are aware of how to liaise with developers 4. You are aware that you are representing Openreach and as an FBC you are the 1st point of contact for the developer and in a position of trust 5. You are aware as a FBC and C3 grade you should set and lead by example. 6. You are aware of how to communicate with developers no matter the size of the Developer or Site. 7. In your opinion the failings by the developer led to both the incidents & other NSR’s/FBC’s not doing their jobs properly & no handover during an absence for sick. 8. You knocked on customer doors to apologise as you know the incident was unacceptable. 9. Apologised to agent – who said you should calm down. 10. Point 8 You knocked on customer doors to apologise as you know the incident was unacceptable & Point 9 Apologised to agent - you’d agree that this was not acceptable 11. You agreed that you let yourself down with the onsite incident”.[83]We saw that in paragraph 40 of his witness statement, the claimant said this (with underlining added by us): “As I finished up my duties on site for the day, I spoke with the customers that were moving into their properties and apologised on behalf of Openreach that they would not have service for at least another week and for the arguments that had occurred on site earlier that day. This was very well received and appreciated.”[84]In our view, the words which we have not underlined were inaccurate and misleading, in that the service of the respondent was able to be supplied on that day if the evidence of Mr Matthews at SB3, which we have set out in paragraph 54 above was accurate. For the reasons given in paragraphs 187 and 188 below, we concluded on the balance of probabilities that that evidence of Mr Matthews was accurate. As a result, we concluded that it was at least more likely than not that the real reason why the claimant apologised was that he was well aware of the inappropriateness of his conduct towards Mr Cripps on 15 December 2022. We found the following evidence given by the claimant in answer to questions asked by Mr Jewell, (as noted by EJ Hyams and tidied up for present purposes, in part to ensure that the evidence made sense) to support the conclusion (to which, for the avoidance of doubt, we came) that the claimant was indeed well aware of the inappropriateness of his conduct towards Mr Cripps on that day. “Q: So you apologised to [the site agent] and knocked on the doors of customers? A: After the event, yes. I took it on myself to do it; I was the senior engineer and I did what I thought was correct. Q: Did you apologise as they might have heard your behaviour and your swearing? A: It was because of the overall situation, which was out of control. But I did it also to show that I was partly to blame, I felt. It was because of my conscience; I thought it was the best thing to do. Anyone of my seniority, I felt, should do the same.”[85]The document at pages 191-202 was dated 15/03/23; that date was given in a row on page 202 the first cell, or box, of which had in it this text: “Date Investigation / Summary Completed”. Before that document was completed, Mr Sohanpal sent it to the claimant without the following text, all of which was on page 200 below the words (which were in quotation marks and bold in the original): “I will now consider everything you’ve said carefully before making a decision on what further action, if any, is needed.” “After the fact findings Martin asked for the follow to be taken into account. Whilst this is not the process I have kindly made a note of this. Martyn supplied – further answers to Q6, Q7, Q8 and Q10 these were not mentioned or discussed during the fact finding interview 0n 06/02/23 with Myself (Harps Sohanpal) & Jonas Vaughan. Sent via email on 22/02/23 – a copy of these can be supplied on request. Martyn also sent through a chronicle of events which were not part of the fact finding and contain numerous factual inaccuracies but may be something to view during any possible appeal or review. I have also kept a contact log which is available again on request . During the period making contact with Martyn has been challenging. during this investigation period it has been very difficult to get hold of Martyn - his work phone is generally off or he does not answer - I have had to go through his emergency contact - Lisa-Jayne York to get him to check his emails and return my calls, this has not only been inconvenient - As Martyn is suspended and not on annual leave it is a company expectation for him to keep his work phone on and answer his emails from me during working hours this was the deciding factor on why he was left in possession of it. I had to remind him of these responsibilities and Martyn was argumentative & rude saying that no one has ever told him. This is a basic condition and a failure to comply to a reasonable request. During this time not only has this put extra pressure on the team & his fellow FBC’s but has a negative impact not only on our business but that of the many developers to whom he i the 1st point of contact. I would add that he has a voicemail message set up on his mobile asking for contact to email him to find details of who to contact in his absence but there is no out of office with any details of this via his email account, one of many frustrations shared by developers . I understand that this has been a difficult period for all involved but it seems Martyn has been nothing but difficult when it comes to communication and has addressed me in in a generally rude and aggressive manner which has been witnessed by my colleague David butler who I share an office with. I have tried to be as understanding and accommodating as possible, however Martyn has failed to show me the same courtesy and I have first-hand experience of him being aggressive and using foul language when discussing this matter with him.”[86]We rather doubted that it could be said that the words in italics (which were in italics in the original) were “kindly” towards the claimant. Rather, they were highly critical of him. In paragraph 65 of his first witness statement, Mr Sohanpal said that the claimant telephoned him on 16 February 2023 and was “very abrupt and rude on the phone” and was “swearing and complaining about not being able to open or print the documents I had sent over to him”. When that paragraph was put to the claimant in cross-examination, he accepted that he was “probably abrupt and stern with [Mr Sohanpal] but not shouting and swearing down the phone at him”.[87]Section 4 of the document at pages 191-202 contained a box with one and a third pages of text, stating Mr Sohanpal’s conclusions. They started with his conclusions about the Westfield site, under which he wrote: “Martyn has offered the following mitigation – He was responding in the way he was spoken to by other people – the witness statements do not corroborate this and developers have stated that the engineers onsite where all working in correct manner and there were no issues that day until Martyn arrived onsite.”[88]Mr Sohanpal then quoted these words from the email from Mr Smith of 15 December 2022 which we set out in paragraph 37 above: “Martyn York came onto site and caused a lot of avoidable upset. He was in my opinion extremely rude and abrupt not only to my staff but to your fellow engineers”. Mr Sohanpal concluded in relation to the Westfield site: “Developers & other FBC’s where not following process – this is unproven and does not mitigate the poor behaviour or breaching standards Physical & Mental health issues – Martyn has had time off for stress & an operation on his shoulder, and his van was taken off him due to a fear of self/public harm after threatening behaviour. Whilst I do sympathise with Martyn’s ill health – Martyn has returned to work with fit notes from his Doctor. Openreach have put support in place with Dougie Trail helping Martyn with his sites since his return from the stress absence and also covering his sites for the period in which Martyn was off. Martyn has also had the option to give up St Albans multiple times– his busiest area but refused this with his previous manager 2 managers.”[89]Mr Sohanpal then said in relation to the Cambridge Road site: “Martyn has offered the following mitigation – He was responding in the way he was spoken to by other people - the witness statements do not corroborate this and does not mitigate the behaviour or breaching standards. Developers & other FBC’s where not following process – this is unproven and does not mitigate the poor behaviour or breaching standards”.[90]That was a little odd, since there were no witness statements made in relation to the manner in which the claimant interacted with Mr Shaun Murphy on the telephone on 15 December 2022 (or previously, in person or on the telephone) in relation to the Cambridge Road site. The thrust of what was said was, however, that the claimant had simply responded to Mr Murphy in the manner in which Mr Murphy had spoken to him, and the claimant was dealing with a situation in which the developer, J.Murphy Contractors, and “other FBC’s” had not followed the correct “process”. Mr Sohanpal then repeated the second paragraph quoted in paragraph 88 above, namely the one about the claimant’s “health issues”, and finished the box of text with the following words. “Therefore in summary…… I have taken all of this into account and the only action suitable is that of Disciplinary action for gross misconduct for Brand damaging behaviour in the form of bullying another engineer and secondly the customer complaints that followed and bringing the company into disrepute. Martyn’s role as an FBC requires him to be the Face of Openreach & first point of contact for developers and it essential that he remains professional at all times. As a C3 he should lead by example. In my honest opinion Martyn should not be in a customer facing role.”[91]Under the row for the date when the “Investigation/Summary” was completed, there were two rows with the heading: “If progressing as a disciplinary case – please complete, where known.” The first row was for the investigator to give the “Disciplinary Manager’s name”, and the second one was for that manager’s “Contact Number / Email”. Those rows were completed by Mr Sohanpal by putting in Mr Mistry’s name and email address.[92]One curious aspect of this case was that Mr Sohanpal did not send on to Mr Mistry the documents which the claimant had sent as described by Mr Sohanpal in the italicised words on page 200 which we have set out in paragraph 85 above, although he did say that he would send them on if asked to do so. Both Mr Mistry and Mr Liam Smith said in their witness statements that they had taken the contents of those documents into account when making their decisions, but at the start of their evidence, both of them said that they had not in fact had those documents before them when they made their decisions. Both of those managers saw those documents for the first time when they read them in the hearing bundle.[93]We had to take into account the contents of those documents for several reasons. One was that the claimant claimed that it was a grave procedural error for Mr Sohanpal not to send on the documents, and that if the documents had been read by Mr Mistry and Mr Liam Smith then their decisions might have been different. Another reason was that the documents contained evidence of what the claimant was saying in writing about the events of 15 December 2022 for which he was dismissed at the latest on the day when those documents were sent to the respondent. That day was (the parties agreed, and we could see from an email which was sent to us during the hearing) 22 February 2023: an email enclosing the documents was sent at 11.48 on that day. They were sent then because on 17 February 2023, Mr Sohanpal sent an email to the claimant enclosing a first draft of the document which was at pages 191-202, for him to “edit & add in red on the fact finding document”. That email included also(1) the texts of the emails from Mr Cripps and Mr Flynn which we have set out in paragraphs 51 and 52 above,(2) the document copied as page 203, i.e. the text of the email from Mr Steve Smith which we have set out in paragraph 37 above, and(3) an encrypted and unreadable version of the document at SB2-SB3 which included (a) the email which we have set out in paragraph 53 above, and (b) the passage which we have set out in the indent in paragraph 54 above. The claimant was sent a readable version of the document whose text is at SB2-SB3 at the latest on 27 March 2023 in the manner which we describe in paragraph 105 below.[94]In fact, we found the documents which the claimant sent in response to that draft investigation report of Mr Sohanpal to contain evidence which, rather than exonerating the claimant, strengthened the evidence against him. That is for the following reasons.[95]The claimant’s proposed additions to the notes part of the investigation report of Mr Sohanpal were at pages 218 and 219. We have set out the additions relating to the Cambridge Road site on page 218 in paragraph 29 above. We did not see that those additional answers added anything material to the content of the notes at page 198 which we have set out in paragraph 22 above.[96]In relation to the Westfield site, on page 218 there was this response to “A6”: ‘Should read “Dave Flynn called Martyn to say the box is not fluid”. There is also no mention of Dave swearing. There is also no mention of Gary repeatedly swearing and spitting in my face. There is no mention of a ground worker throwing an item at me whilst on site on the 1st December 2022 and the groundworkers were also intimidating me by surrounding me with both developers as witnesses, this was due to a carriageway box not built to Openreach specifications, the groundworkers foreman did not know the difference between stretch bond and english bond, this did not feel me with confidence. The dates in the paperwork are also factually wrong, it should read “Went to site on the 1st and 7th December 2022, with an email sent on the 9th December 2022”.’[97]The things that happened before 15 December 2022 seemed to us to be irrelevant to what happened on that day, except as a possible mitigation for the claimant’s conduct of that day. The first sentence of the passage which we have set out immediately above was neutral. The second one was wrong because (see paragraph 75.3 above) at the top of page 197, it was said that “Dave”, i.e. Mr Flynn, had “answered that Martyn was the fucking FBC and he had to deal with the issue.” The third sentence was wrong because on page 197, there was (see paragraph 80 above) a reference to the claimant claiming that Mr Cripps “was swearing, spitting and shouting in [my] face so I didn’t want to back down.”[98]On page 219, there was this new text, under the heading “Appendix 005”. “No mention of Gary swearing, spitting and being confrontational to me in his witness evidence. His total lack of respect for a senior engineer and seniority I hold as a long service record within the company. I would like to add that the first interview at Leagrave with Dave Butler and you was very unprofessional, brought in under false pretences. I was also very concerned that at least two to three engineers and two managers are in the same office and can overhear and be privvy to what was going on which is confidential information , this could be a breach of data. This is bad practice as this must happen to other engineers as well. The second interview was 3 hours long but handled in agreeable and professional manner. Thank you to both you and Jonas. Please find attached my chronicle of events which was written after my suspension.”[99]We asked the claimant during the hearing when the “chronicle of events” which was sent along with the responses inserted into Mr Sohanpal’s report as sent to the claimant after the meeting of 6 February 2023, was created, and who created it. On 21 August 2025, just before we adjourned at 12.20pm, the claimant said (as noted by EJ Hyams): “This was my chronicle of events which I wrote out at the time. I made notes in the diaries.” The final sentence of the extract set out in the preceding paragraph above shows that the document started to be created no sooner than 6 January 2023 when (see paragraph 56 above) the claimant was formally suspended.[100]After lunch on 21 August 2025, when being cross-examined, the claimant was asked whether he was content that the document at pages 385-392 set out his “version of what happened”, and he said that he was. In fact, we concluded that it might have contained an error on page 387, in that we thought that the words in the tenth and eleventh lines “you’ve already upset one of my engineers onsite who says he’s going home now” might not have been said by Mr Flynn at the time indicated in the narrative on that page. That was because Mr Cripps’ description of the events, in his email of 20 December 2022 which we have set out in paragraph 51 above, suggested that there was just one altercation between the claimant and Mr Cripps, and that it was at the end of that altercation that Mr Cripps told Mr Flynn that he wanted to go home. However, if that was not an error, and Mr Cripps had forgotten that he told Mr Flynn after a first exchange between him (Mr Cripps) and the claimant that he (Mr Cripps) wanted to go home, then that made the claimant’s conduct as described in his own words on page 387 even more problematic. The whole of the text at pages 385-388 up to the heading “16.12.22” was relevant, but the passage on pages 385-386 was relevant only by way of background. That passage ended at the bottom of page 386 with the claimant recording that he had said to the site agent, Mr Jon Canavan (it was written there that this was said on the telephone, but we doubted that that was correct as the site agent was very close by physically): “What’s going on at this site Jon? You sent me pictures in an e-mail which I questioned the next day (missing ironwork and a hole in the corner of the box which needed to be bricked up). I’ve checked that but the ironwork hasn’t been installed?”[101]On the next two pages, pages 387-388, there was the following passage. Some of it was in blue font, the passage in capitals was in red font, the timings were in purple font, and the rest of it was in black font, but there was no apparent reason for the difference in colours. The bold words were bold in the original (the text of almost all of which was on pages 376-383, as indicated in paragraph 17 above; during the hearing we were also sent the original in digital form as a separate document). There was no underlining in the original, and we have added underlining to show the words which we regarded as most important. So, for example, where text is both bold and underlined, that is because it was bold in the original, and we have added underlining to it. We have ensured that the original text colouring is in the following passage. “I then approached Dave Flynn. Martyn: Please come and speak to the developer on the phone so it doesn’t make me look like I’m not doing my job. Dave: Don’t have a fucking go at me, you’re the fucking FBC, your fucking job to do it, no one elses. I’m here just to look after my engineers. Martyn: I will sort it out but you need to speak to this developer. Dave: No you’re the FBC, I ain’t got fucking time,you’ve already upset one of my engineers onsite who says he’s going home now. This made me feel shocked and angry. I walked away to get the box sorted out. One of the ground workers then didn’t have the right drill and so I approached Dave to request to borrow a cordless drill. He gave me the drill and said he wanted it back. Dave: How can we have ground workers who don’t have the correct size drill or drill bits? Martyn: This is the real world. I then gave the ground worker/ site agent the drill and drill bits plus the installation guide to proceed with resolving the issue. I then went back to swap a dead drill battery for a fully battery and then gave the battery to the ground worker who continued working whilst being watched by people around him. Walking back 10 yards from box being sorted out, I said to Gary that the issues with the box are being sorted out, he clearly was still unhappy. Martyn: Put our differences aside and put the customer first. Gary: I don’t give a fuck about the customers. Martyn: That’s a good attitude to have, what about the FOD? Gary: I don’t give a fuck about the FOD’s. I then approached him closer trying to calm him down. Clearly this then escalated very quickly where he began to shout, swear and spit in my face, he then said several times in my face the same thing, he was ranting uncontrollably by this stage. Gary: Martyn fuck off, get out of my face. This was then followed by Gary: All I give a fuck about is myself, nobody helps me out, I am stressed up to the hilt, you don’t know fuck all. Martyn: I went off with stress last year due to Dave Butler. I thought this would calm the situation but then he paused, thought about it and then proceeded to continue with his ranting again. Martyn: I’m not backing down. Gary: Martyn fuck off, get out of my face. Martyn: I’m not backing down (I said this three times). The fucking site agent has appeared to lie to me ( I was telling him the facts and being assertive by this stage). This is when Gary backed off, went to his van and sulked. I then backed off, proceeded to see the site agent who was outside his office and I apologised, he then commented that I needed to calm down. Martyn: I am calm I said. Agent: Everything was running smoothly until you got here, you’ve made the situation worse. Martyn: Because the boxes have not been done in time and the original company had gone bankrupt, numerous site agents, ground workers and electricians had changed so clearly the outstanding work was not completed. I did speak to the last agent before my shoulder operation about it. Has Dougie been to site in my absence? Agent: Possibly. I DID QUESTION DOUGIE LATE TO SEE IF HE’D CHECKED THE BOXES, HE SAID HE COULDN’T REMEMBER. IT SHOULD HAVE BEEN BRICK BOXES BUT NOW DEVELOPER PUTTING MODULARS IN. I went and took photographs of customers moving in and apologised on behalf of Openreach that they would not have service so they would also be unable to place an order for at least another week. I also apologised for the arguments onsite. I then went back to the agent and the box, I checked that it was being sorted out correctly. The ground worker seemed more willing now to listen and appreciated the help and guidance I’d given him. I commented on his good work on repairing to a minimum standard. I left site where I got caught up in a load of traffic headed towards Leavegrave where I was heading to explain to my manager about what had happened. On the outskirts of Harpenden I saw Dave Flynn on the opposite side of the road in his van, he looked sheepish and pissed off but he still acknowledged me by a wave, this was roughly 16:00. 16.30 I arrived a Leavegrave roughly at this time.I went to the office but nobody was there. I went to the loo, washed my hands then headed home. 18.17 I contacted Dave Butler 07587605736 I was on the phone for 29 minutes where I explained and outlined all of the pre mentioned in my words.”[102]It was relevant also that on page 389, where the claimant was describing the sequence of events in the morning of 16 December 2022, there was this passage. “11.25 Onsite teams call from Harps Harps: You need to come in and have a chat at the office in Leagrave. Martyn: What is it about? Was it about the argument with Gary onsite yesterday? Harps: Just want to have a chat.”[103]After completing the report at pages 191-202, which was (as we say in paragraph 85 above, dated 15 March 2023), Mr Sohanpal picked (he told us orally; this was not in either of his witness statements) a sample of contractors responsible for the 90 or so sites for which the claimant was (as the FBC) responsible. (We have set out in paragraph 9 above the claimant’s witness statement evidence that it was “over 100 sites”. However, in cross-examination, as can be seen from what we say in paragraph 141 below, he said that it was 90.) He picked a sample of 10%, i.e. 9. He sought to contact the site agents by telephone, leaving them three messages if they did not answer their telephones. Mr Sohanpal told us (and we accepted) that his motivation in doing that was not to find evidence of conduct which was similar to that about which Mr Smith and Mr Murphy complained on 15 December 2022. Rather, it was Mr Sohanpal’s evidence, he was looking for (as he put it and we accepted, despite the risk of him over-egging the pudding) “a ray of sunshine”. He wanted to be able to say in his report that what occurred on 15 December 2022 and before then in relation to the Cambridge Road and Westfield sites was an aberration. Mr Sohanpal said that he asked simply for feedback, not saying any more than that. Two of the agents spoke to Mr Sohanpal. Both of them gave negative responses. One of them, a Mr Simon Brazier, said (as recorded by Mr Sohanpal in the document at page 253) this: “martyn - process not great - not much progress - frustrating too much technical jargon - nice to talk to but, told developer to do things Lewis has never asked for. Simon had to reach out to lewis on numerous occasions to get him advice and explained in a manner he could understand - Martyn put the onus on the customer and almost blinded him with technical knowledge. Due to issues with developer portal maryn suggested going with copper - even though site was fed with poles and fibre could be used. In the end Simon just wanted connection and was advised the copper would be easiest process. Said martyn was a nice person - but often had him tied in knots expecting him to know every regulation - lots of barriesr put up and mad e me feel like i needed to be a telecoms expert which i’m not.”[104]A Mr Lawson was recorded by Mr Sohanpal to have said this: “Unable to get hold of Martyn majority of the time - doesn’t return voicemails or emails, Phone has a message to email and contact people on the out of office that is not there, he’s not organised aranges meetings and at best cancels but mostly doesn’t show - dropped some stores but not much else - there is currently a cable stuck in wall that he promised to sort out months ago- and a plot that needs calling off and connecting - relationship is not great but communication is worse - I have dealt with Lewis in the past - can i please request Lewis to look after my site? customer went with copper as cost saving £2000 and told by martyn - will be converted to fibre during roll out”. The procedure followed in the dismissal of the claimant[105]On 20 March 2023, Mr Mistry sent the claimant the letter at pages 222-224 by email, enclosing with it the documents at pages 191-209, 253 and 426 (which was headed “Martyn York Contact Log” and was created by Mr Sohanpal). At 10:23 on 27 March 2023, in the circumstances described in paragraphs 112-113 below, Mr Mistry sent the claimant the document at SB2-SB3. Thus, by the latter time, the claimant had been sent all the material resulting from Mr Sohanpal’s investigation apart from the documents which the claimant himself had created, i.e. pages 218, 219 and 385-392. The letter at pages 222-224 invited the claimant to a “meeting to discuss” the content of the emails of 15 December 2022 from Mr Steve Smith and Mr Shaun Murphy. The meeting was to take place at 10.00am on 27 March 2023 at Milton Keynes TEC. At the start of the letter Mr Mistry set out the relevant part of the email from Mr Smith which we have set out in paragraph 37 above, but with slight but immaterial textual errors. That was in the first indented passage on page 222, which this: “Martyn came onto site on the 15.12.22 and caused a lot of avoidable upset. He was in my opinion extremely rude and abrupt not only to my staff but to your fellow engineers. I have occupants moving in today so to hear obscenities and excessive loudness is not acceptable. I am sure you can understand that I won’t accept this type of behaviour and most certainly wouldn’t expect my staff to behave like this . can this please be addressed so that it doesn’t happen again.”[106]Mr Mistry then, in the second indent on page 222, described the email from Mr Murphy a little inelegantly but the description included this text, which was a slightly mangled quotation from the email which we have set out in paragraph 24 above (as can be seen from what we say in square brackets in the following text): “I don’t really know what [that should have been “why”, not “what”] he was going on about all this again after we had argued about it all before when he visited site, but we ended up arguing again about it all again today [those words should have been “ended up arguing on the phone again today about it all.”]. I don’t want to deal with Martyn anymore, he has been a problem to deal with since the start. He is nothing but awkward and unreasonable.”[107]Mr Mistry then wrote (at the bottom of page 222): “These are both to be considered for Gross Misconduct offences. The offences if proven would significantly impact our business, reputation and brand. There could have been a breakdown in trust between the company and the colleague, that needs to be investigated.”[108]Nowhere in the letter did Mr Mistry say specifically that the text on page 200 which we have set out in paragraph 85 above would be taken into account, or that the content of page 253 (to which we refer in paragraphs 103 and 104 above) would be taken into account, but before listing the documents which he was enclosing on page 223 (which included the “Developer Check In M York” and the “Fact Finding Investigation”), Mr Mistry said this: “Documentation I’ve included copies of all the documentation which I will rely on and refer to in the disciplinary meeting. If any other information comes to light that I will look to use as part of my considerations, then this will be shared with you so there will be no need to raise a formal request for disclosure of information. If there’s any documentation that you want me to consider then please provide these to me as soon as possible. If you need access to any documentation from the intranet and are unable to obtain a copy, please contact me on 07764338373 and I can send a copy to you.”[109]On 23 March 2023, the claimant sent the email at page 228, in which he informed Mr Mistry “Winston Richards (my Union Rep) is on leave until the 28th March 2023” and asking whether it would be possible to “have one of your managers as a character witness -Jonas Vaughan.” This was on the basis that “He was my manager for some time and witnessed at first hand my dealings with site agents and customers.”[110]The claimant also said this in that email: “Is it ok to forward this e- mail to my Union Rep and please can you re- send this e mail with all the attached documents (looks like read only too me). I will need to print all the documents off so I can read and prepare for the meeting.”[111]Mr Mistry replied at 09:18 on the next day, 24 March 2023 (which was a Friday; the email was on pages 227-228): “You can forward these to your union rep or another union rep. I’m not sure what you mean by read only, everything you have just sent me back is openable to read, and print. I will not be inviting anyone else to the meeting, but as the letter states you can bring either a work colleague, or a union rep. See you Monday.”[112]The claimant then left it until 09:40 on Monday 27 March 2023 to send the email at pages 226-227 in which he wrote: “I have explained in my last e- mail that my Union Rep is on annual leave until the 28th March 2023.His name is Winston Richards. I have been advised that I should not attend the meeting without my Union Rep present. I will arrange a meeting with the three parties through my Union Rep and their earliest convenience. I also cannot print the evidence for Mark Matthews as it is corrupted, please re-send so that I am able to print the document off and send on to my Union Rep.”[113]Mr Mistry replied at 10:24 on that day in the email at pages 225-226, enclosing (as we say in paragraph 105 above) a legible copy of the document at SB2-SB3, and saying this (the final paragraph being in red font in the original document, it plainly having been Mr Mistry’s intention that the claimant took that paragraph seriously): “As per the phone call at 09:41 today. I’m disappointed that you left it 30 minutes prior to the meeting starting to inform me you was not attending. As per the letter I sent last week, you were expected to call me to request to reschedule if you could not attend. I have re attached the Mark Matthews document. Attendance at meeting I expect you to come to this meeting, however, should you be unable to do so for a reason outside of your control, please contact me on 07764338373 to request a reschedule. If the reason for not being able to come is that your companion is unavailable, you’ll need to provide reasonable alternative dates and times of when they’re able to come. Those dates should be within seven calendar days of the meeting date given above. You’re encouraged and expected to come to the meeting. Should you fail to do so without good reason, then the meeting may go ahead in your absence and I may need to make a decision based on the information I have available to me. It’s important that you keep these matters confidential and don’t discuss them with work colleagues (other than your chosen companion). Should you disclose or discuss these details (including documentation) with your colleagues this may lead to disciplinary action.”[114]The next relevant event was that on 31 March 2023, Mr Mistry sent the claimant the email at the top of page 225, which was self-explanatory and was in these terms. ‘Just picked up your voicemail you left at 12:02 pm today. Was a little windy in the background, but I captured you saying that, “Brian at the CWU, has looked at Winston’s diary and advises you he should be free at the back end of next week. If you send over the new dates he should have no excuse not to attend.” Firstly as you can see below in red from the original letter, I highlighted that it was your responsibility that if you could not attend the original date, you had to give me a reasonable date and time, within 7 calendar days of the original meeting date. You have not provided me with this. However to be reasonable I have attached 3 new dates. I need you to confirm which one of these dates you can attend.’[115]Those dates were Tuesday 4 April 2023, Wednesday 5 April 2023 and Thursday 6 April 2023, with specific times on each day (12pm for the first date, and 9am for the second and third dates), and the venue stated to be “Milton Keynes TEC”. Those things were stated in the letter at page 230 which was enclosed with that email from Mr Mistry to the claimant. The letter contained the following text in addition. “I understand that you’d like to reschedule your Disciplinary Meeting as you’d like to be accompanied by a representative. We’ll reasonably accommodate any extenuating circumstances, therefore I’ve detailed three alternative dates/times for you to discuss with your representative. If these dates are unsuitable an alternate representative, who can attend one of these dates, should be identified to allow us to progress with the process. ... Please confirm the preferred alternate date/time to me by 03/04/2023 on 07764338373 or nikki.mistry@openreach.co.uk.”[116]On Tuesday 4 April 2023, at 12:07, the claimant sent the email at pages 231-232 to Mr Richards, copying it to Mr Mistry. It was in these terms. “Morning Winston, Please can you confirm when the meeting with my Som Nikki will take place as I have still not been informed by you. Nikki has made it clear to me that it is my reasonability to chase the union but it is very hard to do so as unfortunately I have had no response from you for the last two weeks . This is making me extremely anxious and very stressed which is not helping me. Please can you reschedule a meeting with Nikki asap. I am free any time so there is no issue on my part.”[117]In paragraph 26 of his witness statement, Mr Mistry said in regard to that email: “This [i.e. 12:07 on 4 April 2023] was after the 3 April deadline I had set out my previous letter and after the first available meeting date I had offered. He acknowledged that I had made it clear to him that it was his responsibility to chase his union. He said he was anxious and stressed and asked for his union rep to contact me directly. In my view, Martyn was well aware by that time that it was for him to make arrangements to attend one of the meeting dates, not his union rep. I was not contacted by his union rep in any case.”[118]Mr Mistry worked at the Milton Keynes TEC on each of the three days in question, i.e. 4, 5 and 6 April 2023, so that if the claimant attended then he could hold the meeting with the claimant. The claimant attended at Milton Keynes TEC on none of those days, and Mr Mistry decided that he would conduct the hearing without the claimant present on the last of those three dates. His reasoning for doing so was stated in paragraph 27 of his witness statement, in the following terms. “I made the decision to conduct the meeting without him because I felt that, despite making all reasonable efforts to accommodate him, he had made very little effort to engage with the process. He had been extremely poor at keeping in contact with me and had let multiple deadlines pass without acknowledgement or action. Even though he had cancelled at short notice on the day of the last disciplinary meeting, I had allowed him to reschedule and provided him with dates that were more suitable for his union rep to attend. Despite that, and his knowledge that the onus was on him to reach out, he had let those dates pass without comment. Through my review of the disciplinary documentation and previous conversations with Harps, I was aware that this had been a pattern at the fact-finding stage as well. I did not have confidence that Martyn would suddenly start to engage if the hearing was rescheduled for a second time. He was also suspended on full pay and that could not go on indefinitely. For those reasons, I felt that the balance lay in holding the disciplinary meeting without him in attendance. I called HR to confirm that they were happy that I could hold the meeting in absence, and they confirmed that it was acceptable to do so in the circumstances.”[119]The fact that Mr Mistry contacted the respondent’s HR team was on one view irrelevant, but it was relevant to show that Mr Mistry did not act in a fit of pique.[120]Mr Mistry said in paragraph 28 of his witness statement that he looked at all of the documents before him, and arrived at the following conclusions.[121]In regard to the complaint about the Westfield site, he concluded this. “The evidence provided to me confirmed that Steve Smith’s complaint alleging misconduct/unprofessional behaviour from Martyn on site to developers and colleagues was well founded [p203]. Witness statements ingathered as part of the fact-finding investigation corroborated that Martyn had been harassing his colleagues at the site on 15 December 2022 [p204 & 208] Furthermore, as a developer, Steve did not know Martyn and would have had no reason to make up what had happened. It is an extremely rare occurrence for a developer to contact Openreach directly to complain about an employee. Lastly, Martyn had not denied misconduct in his answers to Harps during the fact-finding interview, merely indicated that others had acted in an unprofessional manner as well [p195-200]. I found this charge proven.”[122]As for the Cambridge Road site, Mr Mistry came to the following conclusions. “The evidence I reviewed led me to believe that Shaun Murphy’s complaint alleging misconduct over the phone/unreasonable behaviour was well founded. As with Steve Smith, it is a very rare for a developer to contact Openreach directly to complain about an employee. Shaun did not know Martyn, so would have had no reason to make up or exaggerate events. His emails to Openreach were well set out and seemed entirely credible [p205-207]. Martyn himself had not denied that he had argued with Shaun during the fact-finding investigation, merely indicated that Shaun was the unreasonable party in the exchange. I also took note of the fact that Harps had contacted other developers who worked with Martyn on their sites, and that they had also complained of a poor relationship and/or difficult communications with him [p208]. I felt that the rude/unreasonable behaviour that Harps said he had experienced and subsequently logged in the Contact Log provided further evidence that this was a pattern of behaviour with Martyn. [p426]. As a result, I found this charge proven.”[123]We pause to say that the cross-reference in the passage which we have just set out to page 208 was an error, but it was immaterial. The passage of Mr Mistry’s statement following that one, i.e. paragraphs 29-41, was relevant, and we accepted it in its entirety. We set it out in paragraph 130 below. That is because of the manner in which the claimant’s claims in these proceedings were advanced, and because setting out that passage was necessary in order to make it clear why we rejected a number of those claims.[124]By way of illustration, we observe that issues 2.5.9 to 2.5.21 (set out in paragraph 2 above; any reference below to the issues is to the issues as set out in that paragraph) cast the net as widely as it could conceivably be cast, as far as we could see. In at least one respect the issues posed there failed to take into account the nature of employment in the digital age, where an employer’s disciplinary policies and procedures will usually be readily available on the employer’s intranet. That was by asserting as issue 2.5.12 that “the claimant was not provided with a copy of the Standards of Behaviour Policy and this was not included within the papers for the disciplinary hearing”. The list of documents set out immediately below the passage of the letter which we have set out in paragraph 108 above included the respondent’s “Disciplinary policy and procedure”. In fact, it looked from the copy of the email enclosing that letter which we were sent during the hearing that that “Disciplinary policy and procedure” was not sent to the claimant by email with the letter. Nevertheless, the claimant was informed in that letter that each of the two instances of conduct described in the manner to which we refer in paragraphs 105-107 above was seen by the respondent as sufficient to dismiss the claimant, “if proven”, on the basis that each of them, if proven, constituted gross misconduct.[125]In addition, in our view being “nothing but awkward and unreasonable” to a customer (as set out in paragraph 106 above), or being “extremely rude and abrupt not only to [a developer’s] staff but [also to the claimant’s] fellow engineers” (as set out in paragraph 105 above), was obviously conduct which was likely seriously to damage the implied term of trust and confidence, namely the obligation not, without reasonable and proper cause, to act in a way which is calculated or likely seriously to damage or to destroy the relationship of trust and confidence which exists, or should exist, between employer and employee as employer and employee.[126]At pages 136-148 there was a copy of the respondent’s document entitled “Our Standards of Behaviour Procedure” which was shown on page 148 to have last been amended on 21 November 2019. At pages 149-163, there was a copy of the respondent’s document dated August 2022 and entitled “Our disciplinary procedure” and subtitled “Handling misconduct fairly”. At pages 164-168 and 169-172 there were copies of the respondent’s document entitled “Our policy on disciplinary” and subtitled “Handling misconduct fairly” dated, respectively, August 2022 and September 2023. The claimant did not assert to us that those documents were not available to him via the respondent’s intranet. On pages 155-156 there was a long list of bullet points stating examples of the kinds of conduct which was considered by the respondent to be gross misconduct. The list started with this text: “What’s gross misconduct? It’s a serious offence which leads to a breakdown of the trust which we’ve placed in you as an employee. It’s a breach of your contract of employment. It also includes serious misconduct which is likely to have a negative impact on our business, brand or reputation. Acts of gross misconduct may lead to summary dismissal (being dismissed without notice or payment in lieu of notice). The list below doesn’t include everything, but gives you some examples of what may be seen as gross misconduct:”.[127]The list included the following bullet points (putting them in a different order from that in which they appear at pages 155-156):127.1 “Seriously breaching our Standards of Behaviour policy (including breaking the rules on conflict of interest, offering or receiving a bribe, anti-corruption and bribery)”;127.2 “Unacceptable behaviour towards customers or colleagues (including but not limited to using inappropriate language ...)”;127.3 “Acts of bullying, harassment, discrimination and violence (including physical assault or breaching our Standards of Behaviour or Diversity and Inclusion policies)”; and127.4 “Any behaviour, either at work or externally that could have a negative impact on our business, brand or reputation (including doing something obscene, indecent or malicious) or that has significant negative impact on your role”.[128]At the end of the bullet point list, this was said: “This isn’t an exhaustive list and you can find more information in our Standards of Behaviour procedure (see the useful information section for more detail).” On page 146, which was part of the document entitled “Our Standards of Behaviour Procedure”, bullying was said to include “An abuse of power or position which makes people ill or distressed or makes them lose self-belief.”[129]On page 138, in numbered paragraph 2 of the document entitled “Our Standards of Behaviour Procedure”, this was said. “What’s the expected level of behaviour whilst I’m working here? We’ll expect you to always conduct yourself in line with the requirements listed below no matter what the situation:• Always work to the best of your ability, and act in the best interests of the company.• Work with honesty, integrity and in a way that supports our company brand values.• Protect our brands and company image and reputation.• Always treat others how you would expect to be treated by not using harsh or abusive language and always act in a reasonable manner. ...• Always put our customers at the heart of what we do.• Work within the parameters set out by our policies, standards and guidelines.• Being honest and clear when selling to or dealing with our customers.”[130]Paragraphs 29-41 of Mr Mistry’s witness statement were as follows. ‘29) Later that morning, I called Martyn to inform him that I had conducted the disciplinary meeting in his absence. I reminded him that it had been his responsibility to represent himself at the hearing and that the invite had been addressed to him, not whomever he wanted to accompany him. I pointed out that I had rescheduled the dates/times for the hearings at his request, so it was very disappointing that he had still chosen not to attend. I said that his actions had added extra delay to the process and that per Harps’ experience with him, this wasn’t for the first time. From memory, Martyn was angry on the call, blaming everyone involved and the process itself. He said that the Union had tried to me phone me [sic] between 8:00 – 8:30am that morning. I was quite certain that I hadn’t received a phone call, but said I would check. I told him that I would forward him on a list of questions from my notes which I had intended to ask him at the meeting. I said that if he wished, he could provide me with answers in the format of a written statement. 30) Once I was off the phone, I double checked my call log, and it confirmed that I had not received a phone call from the union earlier that morning. 31) I emailed Martyn at 17:49 that evening summarising our earlier phone conversation and confirming that the union had not contacted me that morning [p244]. I attached a list of questions for him to answer. The questions were predominantly around why it had been so difficult to contact him during the disciplinary process and seeking his explanation for why his relationships with a number of different individuals had broken down to the extent that they had [244]. I gave Martyn a deadline of 4:00pm on 11 April 2023 to provide me with his written response. 32) On 11 April at 12:54, Martyn emailed me to say that he had forwarded on the documentation I had sent to his union rep for advice [p243]. He said he needed his work folders back to answer the questions I had sent to him and that he didn’t think he would be able to achieve the deadline set for later that day. He also advised that he needed new site references. 33) I emailed Martyn at 13:26 to confirm that the questions put to him could be answered by reference to the evidence that had already been shared with him [p243]. I told him that the decision to respond was his, and that I was merely giving him a final opportunity to do so. In my view, Martyn did not require site reference numbers to answer the questions he had been sent. I noted that he had waited until only hours before the deadline to contact me for the first time in relation to these issues. This had been a pattern throughout the disciplinary process to date. I believed he was being deliberately awkward to delay matters further. 34) Martyn emailed me again at 14:08 to restate that he didn’t possess the relevant evidence [p246]. He asked me again for site references and said his union rep would be in touch in relation to the questions. Outcome Letter – 25 April 2023 35) On 25 April 2023, I had completed my investigation and had reached the decision to dismiss Martyn for reason of gross misconduct. I had not heard from him since his last email on 11 April 2023 and as such, I had not received a response to my list of questions. 36) After consideration, I had concluded that Martyn’s conduct had(i) significantly damaged the reputation of the company in the eyes our customers and(ii) had put colleagues at risk. 37) In relation to the first point, in his role as Field Based Co-Ordinator, Martyn was the first point of contact for the developer community in his area. I had found that the complaints of rudeness and unprofessional behaviour were well founded and considered that his conduct was a serious breach of his duties and responsibilities as an employee. The developer space is an incredibly competitive market and damage to the company brand can have significant consequences for our reputation and market position. We needed our people to be flexible and empathetic and Martyn had acted in a way that was completely opposite to that. 38) In relation to the second point, the bullying and harassment of colleagues at work is completely unacceptable and I had found that the complaints in respect of this were well founded. It particularly stood out to me that one of Martyn’s colleagues had been so distressed by his behaviour that they had felt it necessary to lock themselves in their work van to get away from him. I had never encountered anything like that before. 39) I did consider Martyn’s length of service and previous disciplinary record when coming to my decision, but I felt that the seriousness of the charges warranted the outcome of gross misconduct. I felt that if I had taken him in and issued him with a final written warning then that wouldn’t have addressed the problems that were present. Colleagues and developers would still not have wanted to work with him. Furthermore, I had genuine concerns that Martyn might act in a similar way again in the future. I reflected on how he had behaved both with me and Harps throughout the disciplinary process. There had been zero remorse and no serious introspection on his part. Almost every interaction with him had been abrupt or awkward. That pattern of behaviour had also been a common theme throughout the complaints and witness statements. In summary, I felt like the trust that had been imparted in Martyn by the company had completely broken down. 40) Before the decision letter went out, I called Martyn to let him know what I had decided. I always do a phone call so I can better explain my reasons for the decision and answer any questions that the person may have. He was very unhappy on the phone. There was swearing and I remember him saying things along the lines of “this is a complete joke” and “you don’t know what you’re doing”. I obviously understand that people can be very emotional in situations like this, so I didn’t take it personally. I explained to Martyn that I would be sending the outcome documentation to his work email address that we had been corresponding through. I asked him to make sure that he reviewed it. 41) After my phone call with Martyn, I emailed him the outcome letter notifying him that he was being summarily dismissed for gross misconduct [p247-249]. This letter informed Martyn that if he wished to appeal my decision, he should put his grounds of appeal in writing to me within 7 days. I also provided my written reasons for the decision in an attached rationale document [p250-252].’[131]Unfortunately, because of the breadth of the issues raised in this case, the whole of the rest of Mr Mistry’s witness statement from paragraph 46 onwards, which we also accepted (although the cross-reference in paragraph 46 to paragraph 6 should have been to paragraph 8, which we have set out in paragraph 132 below), was relevant. It was as follows. “Comparison with Gary Cripps 46) I understand Martyn feels that, in being suspended/subjected to the disciplinary process, he was treated less favourably than Gary Cripps because of his anxiety and depression. In my opinion, Gary is not an appropriate comparison to Martyn’s situation. There were no developer complaints against Gary or allegations of bullying or harassment from colleagues. The only allegations against Gary were from Martyn and they were not supported by the witness statements that I reviewed. As I mentioned in paragraph 6, I was not aware that Martyn suffered from anxiety and depression. If Gary had been the subject of the same allegations as Martyn, I would have treated him in exactly the same way. Discrimination arising from disability 47) I understand that Martyn has stated in his claim that his anxiety and depression caused(i) his method of communication to appear aggressive and defensive at times,(ii) him to be unable to fully participate in hearings without the assistance of a supporter/representative and(iii) his sickness absence between 16 December 2022 – 6 January 2023. He appears to have alleged that because of these things, I dismissed him; miscategorised his method/manner of communication as reasonable [sic; that should have been “unreasonable”]; and miscategorised his requests to have his union rep present in meetings as unreasonable/a delaying tactic. 48) In relation to the first point, Martyn did not inform me during any interaction I had with him that he had anxiety and depression or that his behaviour on 15 December 2022 had been anything to do with those conditions. I note that he does not, from the disciplinary documentation I reviewed, appear to have mentioned this during his interactions with Harps at the fact-finding stage either. I would say that I did not dismiss Martyn because his communication style could appear aggressive/defensive at times. I dismissed him because it was established on 15 December 2022 that he had bullied and harassed his colleagues, and had also damaged the company relationship with its developers through his on-site actions and other consistently unreasonable/awkward behaviour. I appreciate that strong words can occasionally be exchanged between individuals from time to time, but that was not what had happened here. One of Martyn’s colleagues had felt it necessary to lock himself in the back of his work van to get away from him. Even if his behaviour had been caused by his anxiety and depression, I do not believe that the sanction could have been any different. The company has a duty to protect the wellbeing of our employees, and that includes protecting them from unacceptable behaviour from fellow colleagues. Furthermore, as I outlined at paragraph 37, the developer space is a very competitive market, and brand damaging behaviour can have significant commercial consequences. In my opinion, matters could not have been resolved by a final written warning. 49) I reject Martyn’s allegation that I miscategorised his manner/method of communication as unreasonable. I believe that Martyn’s manner/method of communication was unreasonable. Given his behaviour on site on 15 December 2022, his behaviour during his communications with developer customers and the interactions Harps and I had had with him throughout the investigation process, I believe that is a reasonable conclusion to reach. Even if Martyn’s manner/communication style were as a result of anxiety and depression, that would not have made his behaviour reasonable. 50) In relation to the second point, Martyn did not tell me at any stage, over the phone or by email, that he could not fully participate in hearings without the assistance of a supporter or representative. Either as a result of his anxiety/depression or otherwise. I could see no reference to that in the documentation from the fact-finding stage either. In any case, meetings were rescheduled for him on multiple occasions at both the fact-finding and disciplinary stages in order to accommodate the diary of his chosen union rep. Despite providing Martyn with plenty of notice before meeting dates and making all reasonable efforts to accommodate the attendance of his union rep, he still failed to make the relevant arrangements. If Martyn had felt the attendance of his union rep was necessary for him to fully participate in the disciplinary meeting, I would have expected him to have let me know about it or been proactive in making that happen/keeping me updated. Instead, I found that you would hear nothing from him until he cancelled at the very last-minute citing union unavailability, or not at all. That would happen even when arrangements had been made around his union rep’s diary. I was conscious that I could not indefinitely leave Martyn suspended on full pay with a pending disciplinary when he appeared to be taking no active steps to engage with what was required. I felt that it was necessary to hold the disciplinary meeting in his absence in the circumstances. In any case, my decision to dismiss Martyn was based on what was found to have happened on 15 December 2022 and his communications with developers, not because he needed the assistance of a companion to participate fully in a disciplinary hearing. As I have stated already, I was not aware that he had that requirement. 51) I did not think that Martyn’s request to have his union rep present at the disciplinary meeting was unreasonable. As outlined at paragraph 11, my general view is that having a union rep in attendance at a disciplinary meeting can be helpful/advantageous. When Martyn failed to attend the first meeting, I allowed him to reschedule and provided him with a list of dates specifically so that his union rep could attend. I also did not believe that Martyn’s request for a union rep to attend the meeting was a delaying tactic. I only began to believe that Martyn was employing delaying tactics after he repeatedly failed to engage with me after I had provided him with a range of dates for the second rescheduled meeting. He let multiple deadlines pass without comment and would only ever reach out at the last minute to say that he had an issue. That behaviour continued after I held the disciplinary meeting in his absence and provided him with written questions to answer. It was that behaviour that made me believe he was employing delaying tactics, not his request to have a union rep present at the disciplinary meeting. 52) In relation to the third point, Martyn’s sickness absence between 16 December 2022 – 6 January 2023 did not in any way influence my decision to dismiss him for gross misconduct. Adjustments 53) I understand that Martyn has stated in his claim that it would have been a reasonable adjustment to directly liaise with his union representative to set meeting dates during the disciplinary process. This would not have been the usual way of doing things, as a union rep/companion is there to support the employee through the process, not replace them as the main point of contact or act in their stead. I had multiple conversations with Martyn where I reminded him that it was his responsibility to make sure he attended disciplinary meetings/coordinated with his union rep and he accepted this. He did not request at any stage that I coordinate with his union rep directly; whether because of anxiety/depression or otherwise. If Martyn had asked for me to do this, I would have reached out to Regional CWU rep Hardeep Sagoo to provide him with some assistance.” What Mr Mistry said about the conversation which the claimant claimed to have had with him on 9 December 2022[132]Taking it out of turn chronologically, we now record that, having heard both the claimant and Mr Mistry give oral evidence, and having taken into account fully the claimant’s documents copied at pages 374 (which was a typed document purporting to be a note of a conversation between the claimant and Mr Mistry of 9 December 2022) and 375 (which was a copy of a page of a diary for that day; the note at the top of page 375 looked as if it had been squeezed in at some point after 9 December 2022), we accepted the following passage of the witness statement of Mr Mistry. ‘7) I didn’t have too much interaction with Martyn. He would drop me an email from time to time or very occasionally give me a call, but he was one of many site managers that I would be in contact with. I was never Martyn’s first line manager. Outside of the odd call/email, I didn’t know him well. I would say that I knew the senior team better, as we were in more regular contact. As a Partnership Performance Manager, I did try and build a working relationship with all of the site managers, however. 8) I do remember that I had a conversation with Martyn at one stage where he mentioned that he had struggled with his mental health in the past, and that he was receiving or had received counselling. I was also aware that he had suffered a shoulder injury. I understand that Martyn has said in his claim that he suffers from depression and anxiety. I was not aware that he suffered from those conditions. When he had mentioned his mental health during one of our conversations, it was in general terms. 9) I note that Martyn has set out in his particulars of claim that we had a difficult conversation on a call on 9 December 2022 [p19-20]. I do not recall that conversation at all. I would have remembered a conversation like Martyn has described. If somebody had told me that they were planning to walk out into traffic, that would have raised concerns for me. I would have certainly followed that up with the person’s line manager. As I have already mentioned, I did not speak with Martyn often, so a conversation like that would have definitely stood out. I don’t understand what Martyn means when he refers to the manipulation of statistics at site BFK/00V. The New Sites program is only measured internally and is not regulated by OFCOM. We expect that not all sites will go according to plan and that’s why the internal measure is set at 95%. The reason that the company has Field Based Co-Ordinators is to try and keep as many sites on track as possible, but naturally there will be 3-4 throughout the year that fail. I reject that I have ever said to Martyn: “if you ever get suspended or sacked….”. I have never cut off a phone call with Martyn.’ The claimant’s appeal and the manner in which it was considered by Mr Liam Smith[133]The claimant appealed against the decision to dismiss him. At no time did he state his reasons in writing. The appeal was heard by Mr Liam Smith, who carried out a careful review of the evidence, and heard from the claimant in person. The manner in which the appeal was conducted was not the subject of very many of the issues in the list of issues. The only places in the list of issues relating to the fairness of the claimant’s dismissal where the appeal was specifically mentioned were paragraphs 2.5.9, 2.5.14 and 2.5.17. For convenience, we now repeat what was said in those subparagraphs. Respectively, it was this.133.1 “the respondent did not take account of the claimant’s disabilities or make reasonable adjustments for these during the investigation process all prior to dismissal or subsequent appeal”;133.2 “no evidence of any complaints/negative comments the respondent sought to rely on for the dismissal or appeal were produced”; and133.3 “the claimant’s evidence provided to the investigating officer was dismissed as being inaccurate by them and not included with the investigation report papers nor for the disciplinary hearing or appeal”.[134]The second one of those issues was one of several aspects of the list of issues which prompted EJ Hyams to ask whether EJ George had simply adopted an agreed list of issues. The parties said that she had. Plainly, that issue was bizarre in the circumstances. There plainly was “evidence of any complaints/negative comments” about the claimant’s conduct. What was the thrust of the stated issue, we wondered? Was it that the respondent had not put Mr Steve Smith and Mr Shaun Murphy in person before for example Mr Liam Smith, and asked them to state, orally, what they had already stated in writing?[135]The third of the issues set out in paragraph 133 above related to the material which the claimant had sent to Mr Mistry on 22 February 2023, which was the text at pages 218-219 and the chronicle of events at pages 385-392 to which we refer in paragraphs 29 and 92-102 above.[136]On 2 May 2023, Mr Richards sent the email on page 255 to Mr Sohanpal and Mr Mistry. In the body of that email, Mr Richards said that the claimant had not received the outcome letter of 25 April 2023, so that it was, said Mr Richards, not clear what the reasons for the claimant’s dismissal were. Mr Richards therefore wrote that the claimant had “asked that this be taken as a formal request for an appeal hearing to be scheduled so he can present his case to the regional director.” Mr Richards then said: “Can you take this as his formal request for his appeal to be actioned.” Mr Mistry replied an hour and 20 minutes later in the email at the top of page 256, which was in these terms. “Please see the email I sent to Martyn, after my conversation with him at 11:05 last Tuesday morning. At the time of this email being sent to him, no system access was revoked, and with access to his email I reminded him to make sure he received it. Until this morning’s conversation with yourself, no one had contacted me to say he hadn’t received it. As far as I’m aware Martyn’s phone is also still working, so it’s disappointing to hear this from yourself. Furthermore this morning, I have posted the letter via recorded delivery, alongside the rationale. Martyn should have received an email from empower, with the same documents. However learning from the past, I also send them separately. With regards to a formal request for an appeal, its acknowledged and I will start the process. I will update you both accordingly.”[137]Mr Liam Smith’s PA, Ms Carolyne Miller, sought to arrange an appeal hearing as shown by the emails from her to the claimant on page 257, sent on 4 and 10 May 2023, and on 10 May the claimant replied that he had forwarded the email of 4 May to his union representative and that he had hoped that the latter would have been “in direct contact” with Ms Miller. On 11 May 2023, in the letter at pages 259-260, Mr Liam Smith invited the claimant to an “appeal meeting” to take place in person at one of the respondent’s offices in London at 11:00am on 16 May 2023. The claimant and Mr Richards attended that meeting. There was no notetaker present because Mr Smith said that he would record the meeting unless there was a request for a note-taker, and no such request was made. The letter at pages 259-260 referred to the claimant’s “letter of appeal dated 04/05/2023”, but there was no such letter before us.[138]The appeal hearing was recorded by Mr Liam Smith using his laptop computer and the Teams software on it. There was a print-out of the Teams-generated transcript of that meeting at pages 261-341. It was in many respects difficult to follow, not least because all of the entries purported to be things said by Mr Smith, but they were not: they also included things said by the claimant and Mr Richards.[139]The claimant said relatively little in his witness statement about the appeal hearing. What he did say was in paragraphs 86-89 of that statement. The main things that the claimant said which in our view were relevant here were these:139.1 “Many points were covered in this meeting, but the main take aways were that I re-stated my side of the story, re-emphasised my mental health issues at the time (that are also continuing), noting the extreme pressure that I am under and that I would do anything to regain my job. Liam Smith was very receptive in his responses.”139.2 ‘I disagree with a lot of the reasonings provided by Liam Smith in his rationale document, though this overlaps with my disagreement of the “Disciplinary Rationale” document noted above and therefore I will avoid repeating myself in this section.’[140]Mr Liam Smith’s “rationale document” was at pages 345-349. He summarised it in paragraphs 20-26 of his witness statement, and in the course of doing so he might be thought to have repeated the erroneous mixing up, in the bottom half of page 346, of the two events of 15 December 2022 which gave rise to the written complaints which were the primary cause of the claimant’s dismissal. We found all of the respondent’s witnesses to be doing their best to tell the truth, and we thought that that possible error did not undermine the truth of Mr Smith’s oral evidence to us. With that exception, we found what Mr Smith said in paragraphs 16-26 of his witness statement all to be both relevant and true. The first of those paragraphs stated what Mr Smith understood the claimant’s reasons for appealing to be. As with the evidence of Mr Mistry, we could do no better than set out the relevant paragraphs of Mr Smith’s witness statement, which we now do. We have, in the following passage, underlined the parts that we found to be of particular importance (with the caveat that the underlined words of paragraph 21, while arguably out of place, were apt if read as being applicable to both the Cambridge Road site and the Westfield site). ‘16) When it came to Martyn’s turn to speak, I found him quite difficult to follow. I would describe his narrative as all over the place. He had brought various paper files and an old work laptop with him, which was unexpected, as these were company property and should have been handed back when he was dismissed. At points he was trying to bring out plans for different sites, which were not relevant to the issues at hand. I tried my best to keep the discussion on point, and was able to discern the following: i) Martyn was unhappy that, while he was off sick, the engineer that had been covering his workload had made design changes to one of his sites. This was the site involving developer Shaun Murphy, who had submitted the second complaint describing Martyn as “nothing but awkward and unreasonable”. Martyn said that these changes had not been communicated to him when he returned and that he did not agree with them, believing they would cause an increased cost to Openreach. ii) Martyn said he had asked for support from his manager, David Butler, to help deal with developer disputes that had arisen on both sites where complaints against him had been made. Martyn said that this request for support had been refused. iii) Martyn acknowledged that his behaviour on site on 15 December 2022 had been unacceptable and explained that he had apologised to the engineers and customers involved. He was deeply sorry for actions, but felt that a lesser sanction would have been a fairer outcome. iv) Martyn felt that the dynamics involved in managing new sites caused him stress and was a contributing factor to the two charges/associated complaints. 17) At the conclusion of the meeting, I recapped these points to Martyn and said that I would investigate some of the issues that he had brought up during the meeting/speak to the relevant persons. I explained that I was shortly going on annual leave and while I hoped to have answer for him before I went off on 28 May 2023, it may be the case that the outcome was delayed until my return. 18) Shortly after the appeal meeting, I called Martyn’s line manager, Harps Sohanpal, to inform him that Martyn was still in possession of company equipment. Harps advised that he had found it challenging getting Martyn’s equipment back off him and would contact him again to secure its return. 19) On 26 May 2023, I emailed Martyn via his partner’s email address to inform him that I had not managed to conclude his appeal decision before the start of my annual leave. I explained I would be returning to work on 8 June, and I hoped to provide him with an outcome by 16 June 2023 [p342]. I also copied his union rep, Winston, into the correspondence. 29 June 2023 – appeal outcome letter 20) On 26 June 2023, I had completed my appeal investigation and reached the decision to uphold Martyn’s dismissal for gross misconduct. After consideration, I had concluded that Martyn’s actions had been a fundamental breach of our standards of behaviour policy and had brought the Openreach brand into disrepute. Furthermore, I had found no issues with how the disciplinary investigation had been carried out and considered the decision to dismiss well founded. 21) In relation to the first point Martyn had raised at the appeal meeting, I was comfortable that the changes made on site by the engineer covering him during his absence were made in the best interests of the company and the developer customer, Shaun Murphy. Furthermore, it was not uncommon for engineers to share workloads and to have different opinions and/or solutions in respect of engineering issues from time to time. Regardless, even if Martyn had provided a legitimate reason for being unhappy with the situations on site, his behaviour towards his colleagues and our developer customers had been completely unacceptable and inexcusable. The fact that one of Martyn’s engineer colleagues had felt it necessary to lock himself in his van to get away from Martyn had particularly stuck with me. 22) In relation to the second point, I had contacted David Butler to investigate Martyn’s allegation that his request for support had been declined in respect of the two sites where complaints were later raised [p343]. David said that he did not recall any request for support for the sites in question. As part of my enquiry, I had asked David to look through his email inbox to check that he hadn’t missed anything. This request proved challenging, as Martyn was in the habit of copying his line manager into every communication related to the sites he managed. After checking through his inbox, David confirmed to me that Martyn had not made any requests for support in respect of those sites. He also stated that he had specifically asked Martyn to call him or email him with any support requests, so that they would not be lost in the multitude of daily emails that Martyn copied him into. I further noted that Martyn had failed to provide any documented evidence during the disciplinary or appeal process showing that his support requests had gone unanswered. As such, I was comfortable finding that the managerial team had not ignored Martyn’s requests for support. 23) In relation to the third point, while I acknowledged that Martyn had apologised to a number of the individuals involved in the 15 December 2022 incident, I concluded that this was not capable of fixing the significant impact that his behaviour had had on his colleagues and our developer customers. Martyn was a senior member of the team and had worked in the company for 37 years; he was well aware of the standards of behaviour that were required. I noted that Harps Sohanpal had contacted other developers outside of those involved in the two complaints and that they too had found Martyn awkward and difficult to work with. In my entire career with the company, I had never known multiple developers to complain about an individual. I felt that the various corroborating accounts from colleagues and developers painted the picture that strained relationships with Martyn were common. His behaviour had shattered his relationships with colleagues and customers and had brought the reputation of Openreach into disrepute. I did not believe that an apology could mitigate what had happened. 24) In relation to the fourth point, while I appreciated that managing new sites was a complex process involving the management of a number of internal and external relationships, that did not, in my view, provide an excuse for Martyn’s actions. Upon review of the evidence, I was satisfied that support had been offered to Martyn on numerous occasions and that he had rejected it. I noted that in a previous return to work meeting, he had been offered referrals to the company mental health, occupational health and rehab works teams but had declined. I felt comfortable that Martyn had been in an environment where support would have been available to him had he asked for it. 25) In summary, in relation to the points Martyn had raised, I found that they were either unsubstantiated or incapable of mitigating the seriousness of the charges against him. To add to this, I had legitimate concerns that Martyn was capable of acting in a similar way again in the future. During the appeal meeting, I had gotten the impression that, despite his apology, he did not feel like he had done anything wrong. He had demonstrated very little in the way of genuine self-reflection/insight and I felt like he had spent his time trying to find reasons for why what had happened wasn’t his fault. I also noted from the investigation documentation that he had repeatedly been rude and aggressive to his line manager, Harps Sohanpal, during the fact-finding investigation. This behaviour postdated the two complaints that had been submitted about him and I felt like that undermined his assertion that he was genuinely sorry for his actions and was capable of changing his behaviour. In my view, the relationship between employer and employee had been irretrievably broken. 26) On 29 June 2023, I sent my outcome letter to Martyn notifying him that his appeal had not been upheld and that the decision to dismiss him for gross misconduct remained in place [p344]. I advised him in the letter that this decision was final. I also provided him with my written reasons for the decision in an attached rationale document [p345-349].’ Some further aspects of the claimant’s oral evidence to us about what happened on 15 December 2022[141]When asked in cross-examination (shortly after 3.07pm on 20 August 2025) whether he accepted that Mr Cripps said that he wanted to go home, the claimant said this (as noted by EJ Hyams and tidied up for present purposes; we agreed that those notes were accurate and in all quotations from them below, they are tidied up in the same way): “He said he did not give a fuck; he said he wanted to go home; I said okay. He said that he was stressed. I said ‘Don’t you think I’m stressed; I have 90 jobs on’. I said ‘I am on medication and CBT [i.e. cognitive behavioural therapy].’ Mark Matthews said to let him cool down for 5 minutes and I did. Mark Matthews was the only person who put in an honest statement. He said to give Gary 5 minutes as he and I were both overheating. I said ‘fair enough’, and did it. And I tried to talk to Gary and shake hands and he refused. So no, I do not agree with what he said there. [We were not sure to what the claimant was referring in that final sentence; we have included that sentence for the sake of completeness.]”[142]When it was put to the claimant that he “did speak to people and apologised”, implying that he accepted that what he had done was wrong, he said this. “Okay; I did but as I said, the job pack was wrong. I was getting all the blame. Three customers had moved in. I knocked on their doors and said sorry about the commotion. I apologised and they said ‘no problem as long as we get our internet connection’. So I apologised to the site agent; none of the other engineers apologised.”[143]Mr Scott then asked the claimant whether the new residents were in their new houses, and the claimant said: “Yes; they were moving in with vans.” Mr Scott then asked how far away they were from where the claimant and Mr Cripps were standing and the claimant said that it was “about 5 metres”. The exchange between them continued: “Q: So they could have heard what was being said by you both? A: Yes. But no one else apologised; and I do not think that they [the new residents] got service that day. Q: You say you apologised on behalf of yourself? A: On behalf of Openreach. Q: You have said that you apologised on behalf of yourself? A: Both myself and Openreach. Q: So why was that if you did not shout or swear? A: I did not shout; I raised my voice. I did not swear. As soon as you start shouting and swearing you have lost the argument; you have lost all credibility and have lost control of the situation. Q: You would not have gone round the houses apologising if you had not done something wrong? A: No; I thought Mr Cripps’ shouting and screaming and spitting in my face was wrong. I apologised because I thought it was the right thing to do. I was involved in the situation. I took responsibility for it. I am a senior engineer and needed to take responsibility for what had happened. If the residents had had a complaint then I could have given them my business card and said how to complain. I have done that in other situations. I have tried to be open and honest and upfront as it comes up in the wash every time.”[144]On 21 August 2025, after 3pm, there was the following exchange between Mr Milne and the claimant, as noted by EJ Hyams. EJ Hyams asked that Mr Milne referred to the document at pages 376-383 because it showed the coloured fonts, which were not shown on the version at pages 385-392, which was identical except that it had a little more text at its start and finish. In the notes of EJ Hyams, we have indicated in square brackets the equivalent page of the version at pages 385-392. “Q: Pages 376-383; this document, aside from the additional things in the chronicle at pages 385-392, captures your version of events? A: Yes. Q: And you are content that that sets out your version of what happened? A: Yes Q: Page 378 [387; we have set the majority of that page out in paragraph 101 above, but with the font colouring shown at page 378]; half-way down. You say you approached him and that he was ranting uncontrollably by this stage. So, you approached him, not the other way round? A: I had to approach him to engage with him. There was a problem on site: an FOD failure which he was adamant was going to fail as it was left to last minute dot com as usual. I was called by Dave Flynn to sort it out so I had to approach the engineers. Can you be more clear about what you are asking about. Q: You are having a conversation with Mr Cripps. You say you “approached him closer trying to calm him down”. So, you approached him; you moved closer to him, not the other way round? A: We were within half a metre; I was not pushed up to his face; I was not being aggressive, I was just standing my ground. I approached him to try to calm him down. I asked to shake his hand, he refused. Q: You say you were about this far apart; 50cm? A: A metre. Q: You say you approached him closer to try to calm him down? A: You have to, don’t you. Q: Did you get up to half a metre? A: I did not go straight in his face and go [and the claimant at this point gestured right up to his own face]. He was ranting and raving; he was unprofessional. I approached him closer to try to make contact. The argument was getting out of hand; he was being that he did not care; he was saying he was stressed and he was saying what he had gone through. I did not punch him; I was that close that he could spit in my face; so he was spitting in my face, which is a no no. Q: You held your hand up to your face there and again we are talking 20 cm away from your face? A: You are talking about the argument getting heated; I did approach him; it says that; it was about a metre away and he was telling me to get out of the way; and I said I was standing my ground; I said ‘if you want to back down, you back down’. Q: You approached him and said you were standing your ground? A: Yes; I approached him as I could not have this conversation with the site representatives 20m away. He was the problem as he would not listen. He had been on the firm for two years. I had the right job pack; it was in my folder; it was updated correctly and he did not seem to ask the patch lead what was going on. Dave Flynn said there was a missing spine and it was incorrect; the spine had been done. It is supposed to be done 3 months before FOD. It was an account of errors. The more difficult the situation was getting for both parties [sic]. There were removal lorries on the site as well. Q: You approach him; he says to get out of his face and you say you are not backing down? A: I was the senior engineer; he asked for my assistance. He could have backed away. If he felt threatened why did he not back down. There were customers there. Q: “The fucking site agent has appeared to lie to me ( I was telling him the facts and being assertive by this stage).” Those were your words. A: If I wrote that down then it must be true; it was getting to the stage where I was losing my temper because he was not listening at all. He was not trying to engage. He did not care two hoots what [happened? about?] the job he was there to do at the end of the day; we were there to provide service to a customer. Q: You have been at pains to say to this tribunal that you did not swear, and right here is a document sent by you to the respondent where you say you said “The fucking site agent has appeared to lie”. That is not the evidence you have given to the tribunal? A: That is the only occasion when I swore. Q: When you do swear the battle is lost, you say? A: I stand corrected; but I was so frustrated at the time; but nobody helped; he [we think this was a reference to Mr Flynn] should have intervened. I was struggling with my mental health just as much as him [i.e. Mr Cripps].” The evidence before us relating to entitlement to night shift payments, dirt and discomfort allowance, and London Weighting payments[145]In paragraphs 109 and 110 of his witness statement, the claimant said that he had not been paid extra for the night shifts which he undertook between 8 March 2016 and 5 December 2016, and that he had not been paid “all of [his] dirt and discomfort allowance [totalling £209] for the period between 7 April 2016 and 1 July 2016”. However, the claimant put before us no evidence relating to his ability or otherwise to make claims to an employment tribunal in respect of those claimed failures to pay him wages.[146]The respondent’s pay policy concerning London Weighting was at pages 173- 174. On page 174, there was this provision. “Mobile workers The contractual location will be used to determine whether an individual is eligible for a London allowance. For those individuals whose job requires them to be more mobile, visiting a range of sites, their contractual location should reflect where they spend the majority of their time. If the individual is mobile, where there is no regular place of work, the line manager may designate a location for administrative purposes. However given contractual location is used to determine an individual’s eligibility for a London Weighting allowance [which was defined on page 173 in terms to which we return in paragraph 253.2 below] the line manager must consider this when setting the contractual location. So if a mobile worker works the majority of the time in inner London zone then their contractual location should be reflective of this so as to ensure that they receive the appropriate London Weighting.”[147]In paragraph 111 of his witness statement, the claimant said this. “Finally, since 4 December 2020, I have not been paid for Outer London Weighting. As detailed in the Respondent’s policy on this point (p174 Bundle), I am a mobile worker and I spend over 50% of my workload in the outer London areas. The table at p427-430 Bundle shows all of the areas that are captured within the outer London area. There was never any “patch” agreed with my line manager. For mobile workers, this designated location must be decided (p174 Bundle), but in my case it was not. Nonethless, the majority of my work fell within this area and so I should have been paid this additional allowance up until my Termination Date, amounting to £3,866 (p88 Bundle). This payment, along with the other outstanding payments, was raised with the Respondent. This was most recently addressed with Dave Butler, who told me in person that this payment was rejected. No formal reasoning was given. I asked for this decision to be reconsidered as I am entitled to this payment, just like the other mobile workers in my situation are.”[148]Mr Butler was not cross-examined on this issue. Nor was the claimant. However, the claimant put before us no evidence even about the locations of the 90 sites for which he was responsible at the time of his dismissal. In the ET1 claim form, on page 7 (of the hearing bundle) he stated that the place where he worked was the Telephone Exchange at St Johns Well Lane, Berkhamsted, Hertfordshire HP4 1HA. There was no document in the hearing bundle showing that the claimant had made a claim to be paid Outer London Weighting. Relevant legal principles[149]The parties did not differ in their understanding of the law, and we can state the relevant principles here relatively briefly. The law of unfair dismissal[150]It is for the employer to prove the reason for the dismissal. That is the result of section 98(1) of the ERA 1996. Only if the reason is one falling within section 98(2) of that Act (which includes “conduct”, on which the respondent relies here), or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” within the meaning of section 98(1) of that Act, could the dismissal be fair. Even if it is for such a reason, the dismissal must be fair within the meaning of section 98(4) of that Act. Whether it is so fair is determined by reference to much case law.[151]Where the dismissal was for conduct, then the procedure followed in determining that the employee should be dismissed is assessed by reference to the “range of reasonable responses of a reasonable employer” test: J Sainsbury plc v Hitt [2003] ICR 111. Mr Milne referred us to several cases concerning delay in the procedure followed in deciding whether an employee was dismissed unfairly, including Christou v London Borough of Haringey [2012] IRLR 622, and we saw that what was said in paragraphs 47, 159 and 160 of the judgment of the Employment Appeal Tribunal (“EAT”) in that case supported the proposition that the range of reasonable responses of a reasonable employer test applies when deciding whether any delay rendered the dismissal unfair. If there is no prejudice to the employee arising from the delay, then, said the EAT in paragraph 160, it will not be “an independent ground to support a challenge to the fairness of the dismissal”.[152]In addition, where an employee is dismissed for conduct it is necessary to ask whether there were reasonable grounds for concluding that the claimant had committed the conduct for which he or she was in fact dismissed. The following statement of the applicable principles in British Home Stores v Burchell [1978] IRLR 379 shows why that question needs to be answered, and how it has to be answered. “What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[153]The final question relevant to liability which will then need to be answered is whether the dismissal of the claimant for the conduct for which he or she was in fact dismissed was outside the range of reasonable responses of a reasonable employer. As Mr Milne said in paragraph 8 of his written closing submissions, that question is asked by reference to the situation at the end of the dismissal procedure including any appeal hearing. Mr Milne referred us to the decision of the Court of Appeal in Taylor v OCS Group Limited [2006] ICR 1602. We found the following passage in paragraph DI[1011] of Harvey on Industrial Relations and Employment Law (“Harvey”) concerning that case to be a valuable reminder here of the approach that we had to take. ‘[T]he Court of Appeal in Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602, [2006] IRLR 613 has stressed that tribunals should not consider procedural fairness separately from other issues arising. They should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, a tribunal might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. The Court of Appeal said the following dicta of Donaldson LJ in Union of Construction, Allied Trades and Technicians v Brain [1981] IRLR 224 was worth repetition: “Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity – and that, of course, means common fairness and not a particular branch of the law – and to the substantial merits of the case, the tribunal’s duty is really very plain. It has to look at the question in the round and without regard to a lawyer’s technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane.”’[154]If the claim succeeds then the question whether the basic award payable under section 119 of the ERA 1996 and/or the compensatory award payable under section 123 of that Act should be reduced, or as the case may be further reduced, by reason of the claimant’s contributory fault and/or conduct on the basis that it was just and equitable to reduce, or further reduce, the financial award. In addition, the principles in Polkey v AE Dayton Services Ltd [1988] ICR 142, as explained in paragraphs 21-24 of the Employment Appeal Tribunal’s judgment in Hill v Governing Body of Great Tey Primary School [2013] IRLR 274, will apply, so that the tribunal will need to decide for how long the claimant would have been employed if he or she had not been dismissed unfairly and the percentage chance that he or she would been dismissed fairly at the end of that period. Disability discrimination Claims of direct discrimination because of a disability[155]Section 13 of the EqA 2010 provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[156]Proving a person’s motivation is usually difficult, for obvious reasons. That is why section 136 of the EqA 2010 was enacted. It provides: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[157]When applying section 136, it is possible, when considering whether or not there are facts from which it would be possible to draw the inference that the respondent did what is alleged to have been less favourable treatment because of a protected characteristic, to take into account the respondent’s evidence about, but not its explanation for, the treatment. That is clear from paragraphs 19-47 of the judgment of Lord Leggatt JSC (with which Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblin agreed) in the Supreme Court in Efobi v Royal Mail Group Ltd [2021] UKSC 33, [2021] ICR 1263.[158]However, as the House of Lords said in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, in some cases the best way to approach the question whether or not there has been for example direct discrimination within the meaning of section 13 of the EqA 2010 is by asking what was the reason why the conduct or omission in question occurred.[159]If there is no evidence from which the inference could be drawn that a claimant’s treatment was to any extent because of a protected characteristic, then the claim of direct discrimination is likely, if not very likely, to fail. Claims of a failure to make a reasonable adjustment[160]An obligation to make a reasonable adjustment arises where a provision, criterion or practice (“PCP”) is applied by an employer which “puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.” There is then a duty, imposed by a combination of sections 20 and 21 of the EqA 2010, “to take such steps as it is reasonable to have to take to avoid the disadvantage”. Whether or not it would have been reasonable to make the adjustment sought is a matter for the tribunal to determine, taking an objective approach, and is not to be determined by reference to the “range of reasonable responses of a reasonable employer” approach applicable in the law of unfair dismissal: Smith v Churchill Stairlifts plc [2006] ICR 524.[161]In Ishola v Transport for London [2020] ICR 1204, the Court of Appeal decided, as it is said in the headnote, that “however widely and purposively the concept [of a provision, criterion or practice] was to be interpreted, it did not apply to every act of unfair treatment of a particular employee, as that was not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments was intended to address; that, in context, all three words [i.e. ‘provision’, ‘criterion’ and ‘practice’] carried the connotation of a state of affairs indicating how similar cases were generally treated or how a similar case would be treated if it occurred again; that, therefore, a one-off decision or act could be a practice, but it was not necessarily”. Claims of unfavourable treatment contrary to section 15 of the EqA 2010[162]Section 15 of the EqA 2010 provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[163]Paragraph L[377.02] of Harvey concerns the question whether any unfavourable treatment “is a proportionate means of achieving a legitimate aim” and is as follows. “The EAT in Hensman v Ministry of Defence UKEAT/0067/14/DM, [2014] EqLR 670 applied the justification test as described in Hardy and Hansons Plc v Lax [2005] EWCA Civ 846, [2005] IRLR 726, [2005] ICR 1565 to a claim of discrimination under EqA 2010 s 15. Singh J held that when assessing proportionality, while an ET must reach its own judgment, that must in turn be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. (Applied Monmouthshire County Council v Harris UKEAT/0010/15 (23 October 2015, unreported)). As stated expressly in the EAT judgment in City of York Council v Grosset UKEAT/0015/16 (1 November 2016, unreported), the test of justification is an objective one to be applied by the tribunal; therefore while keeping the respondent’s ‘workplace practices and business considerations’ firmly at the centre of its reasoning, the ET was nevertheless acting permissibly in reaching a different conclusion to the respondent, taking into account medical evidence available for the first time before the ET. The Court of Appeal in Grosset ([2018] EWCA Civ 1105, [2018] IRLR 746) upheld this reasoning, underlining that ‘the test under s 15(1)(b) EqA is an objective one according to which the ET must make its own assessment’.”[164]Claims under sections 15 and 20 of the EqA 2010 are “closely inter-related”: see paragraphs 16-27 of the judgment of Elias LJ in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, [2016] IRLR 216. The question whether there has been a failure to make a reasonable adjustment within the meaning of section 20 is therefore capable of being decided in the light of that passage of Harvey. Wrongful dismissal[165]Where, as here, the claimant is dismissed summarily, the tribunal needs to decide whether the claimant was in fact guilty of what is known usually in this context as gross misconduct. That is shorthand for conduct which is in fundamental breach of contract, or which shows an intention no longer to be bound by the terms of the contract in some essential respect (technically, a repudiation of the contract). That is because at common law, i.e. in the law of contract, that which justifies terminating an ongoing contract without notice (in the case of a contract of employment terminating the contract without notice is known as summary dismissal) is either a fundamental breach of the contract or a repudiation of the contract.[166]Here, the applicable contractual term is the implied term of trust and confidence, which we have stated in paragraph 125 above. Unpaid wages[167]A claim for unpaid wages is made under section 23 of the ERA 1996. The right not to have an unlawful deduction from wages arises under section 13 of that Act. The time limit for making a claim under section 23 is (by reason of subsection (2)) three months “beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made” unless (by reason of subsection (4)) the tribunal “is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, [in which case] the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable”.[168]A claim that an employer has not exercised a contractual discretion to pay an employee is in our judgment (contrary to what EJ Hyams suggested during the hearing might be the case) capable of being made under section 23 of the ERA 1996, as long as the sum claimed is quantifiable. However, before the claim can succeed, the employee must satisfy the tribunal that there has been a breach of contract. Here, the contractual term, which the respondent accepts was binding, was the respondent’s London Weighting Policy, at pages 173-174. We have set out the relevant provision in paragraph 146 above. Mr Milne submitted this in paragraph 93 of his written closing submissions. “R has discretion regarding whether to allocate C’s contractual location within the Outer London Weighting Zone. That discretion is subject to the standards of Wednesbury unreasonableness and the implied term of mutual trust and confidence: Braganza v BP Shipping Ltd and anor 2015 ICR 449 (SC) per Baroness Hale at [32] & [36]; Lord Hodge at [54] – [57]; but see Lord Neuburger at [103] – [104].”[169]There is in paragraphs BI[34]-[34.07] of Harvey a helpful and illuminating discussion about the manner in which a claim about the failure to exercise a contractual discretion in favour of an employee must be seen. We saw that in the final paragraph of that passage (i.e. paragraph BI[34.07], this was said. “The third point to make in this context is that the burden of proof in such cases ‘lies with the claimant throughout’. As explained at [57] of IBM v Dalgleish [[2018] IRLR 4]: ‘’If… the claimants show a prima facie case that the decision is at least questionable, then an evidential burden may shift to the employer to show what its reasons were. In such a case if no such evidence is placed before the court, the inference might be drawn that the decision lacked rationality. However in all cases the legal burden of proof rests on the claimant.’‘ This was the approach taken in Hills v Niksun Inc [2016] EWCA Civ 115, [2016] IRLR 715, which was cited with approval in IBM v Dalgleish. The Niksun case concerned the exercise of the employer’s discretion to allocate a commission payment in respect of a particular international transaction. The employer calculated the commission on the basis of 48 per cent of the transaction, whereas the employee argued the allocation should have been nearer two-thirds. The trial judge found for the employee and that decision was upheld by the Court of Appeal. Although the claimant had the burden of proof, once he raised a prima facie case of irrationality the evidential burden shifted to the employer. On the facts, Niksun had failed to discharge that burden, with the result that this was one of the relatively rare cases where the employee’s challenge to the employer’s exercise of discretion succeeded.” The assessment of oral evidence[170]We found what Leggatt J (as he then was) said in the following passage of his judgment in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) concerning the approach to take when assessing the weight of oral evidence to be of considerable assistance in determining the facts here. “15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. 16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. 17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). 18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. 19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. 20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. 21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. 22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” A discussion about the manner in which the claims made in these proceedings have been advanced and defended, and some particular aspects of those claims The claim of disability discrimination[171]One of the salient aspects of this case was the manner in which the claim of disability discrimination was advanced. There was before us no medical or other expert evidence to the effect that verbal aggression might be a result of, or a manifestation of, depression (as such; not just a passing phase of the sort referred to in paragraphs 41 and 42 of the judgment of the EAT in J v DLA Piper UK LLP [2010] ICR 1052) or anxiety (also referring to that mental condition on the assumption that it is what a psychiatrist would regard as a mental illness). However, much of the claimant’s case here was predicated on the assumption that verbally aggressive conduct can arise from what can properly be called a medical condition of depression, or anxiety, or a combination of those conditions.[172]Aggression may be a result of a mental condition which can properly be said to be a disability within the meaning of section 6 of the EqA 2010, but it would in our judgment be wrong for an employment tribunal to come to that conclusion without there being some sort of relevant expert evidence to that effect. Such evidence would probably have to come from a psychiatrist.[173]As far as mental health is concerned, the landscape has changed dramatically over the last 30 years, since the Disability Discrimination Act 1995 was enacted. Then, there was much stigma attached to a diagnosis of a mental illness, and in general at least, only a psychiatrist would be regarded as being capable of diagnosing such an illness. Now, mental ill-health conditions are frequently asserted by reference to advice given by persons who can be called mental health specialists, but whose qualifications may not be stated. In addition, many people now have depression and anxiety diagnosed by their general medical practitioner (“GP”) rather than a psychiatrist. That appeared to be the case here, since the only evidence of a specialist in the bundle before us about the claimant’s mental health conditions and their impact was that of a “psychologist”, of which sort it was not stated (that was Ms Tessa Davies, who wrote the letter at pages 516-517 to which we refer in paragraphs 12-13 above), and the claimant’s medical records referred to him as having seen his GP and been diagnosed – apparently by the GP – as having (for example this was written on page 461) “Mixed anxiety and depressive disorder”. The “fit notes” in the bundle to which we refer briefly in paragraph 14 above also said nothing about the manner in which the conclusion that the claimant had that “disorder” was arrived at.[174]In addition, the claimant was (see paragraph 10 above) referred by his GP to the local psychological health service for “anger management therapy”. That is not obviously therapy for a mental health condition. In addition, the quotation in paragraph 10 above indicated that anger management therapy does not work if the person receiving the therapy is anxious and/or depressed. There was no explanation of that as far as we could see in the bundle before us.[175]However, the quotation which we have set out in paragraph 11 above showed that in this particular case, the claimant’s anger was diminished by the antidepressant medication which he was taking at the time when the document from which that quotation was taken was written. As Mr Milne pointed out in closing submissions, that document was written when the claimant was not working.[176]“Stress” is not in itself a medical condition. Different people react differently to things which are often called stressors. As a result, it could cogently and credibly be said that stress results from the manner in which the person who is stressed responds to external conditions. A medical condition may then develop in the person who is stressed, but that is by no means a certain result of being stressed.[177]Mental health conditions depend for their diagnosis on what the person who is said to have the condition in question says to the person diagnosing that condition.[178]It was not claimed here (and we rather doubted whether it could credibly be claimed) that anger is a mental impairment for the purposes of the EqA 2010. We were not referred to any part of the Equality and Human Rights Commission “Employment Statutory Code of Practice” which indicated how an adjustment within the meaning of section 20 of that Act might be made for a mental impairment one of the effects of which was inappropriately angry conduct, and we could not ourselves see such a part.[179]Asserting that the respondent’s conduct here was a “Miscategoris[ation of] the claimant’s method and manner of communication as unreasonable” (as stated in issues7.1.1 and7.1.2 ) baffled us. Of course, on one level it did not do so, since we could see that it was an attempt to pray in aid the provisions of sections 15 and 20 of the EqA 2010 in support of the proposition that the claimant was dismissed in breach of those provisions read with sections 39 and 21 of that Act respectively. What baffled us was how it could credibly be asserted that the categorisation of conduct as unreasonable could be a miscategorisation. Either conduct is unreasonable or it is not. Its categorisation by an employer of it as “unreasonable” is just a step on the way to a determination that the conduct was in the view of the employer wrong. Either the employer’s response to the conduct itself was for example unfavourable conduct because of something arising from a disability or it was not. Equally, either there was a failure to make an adjustment which an employment tribunal concludes it would have been reasonable within the meaning of section 20 of the EqA 2010 to make in relation to the conduct (for example by being more tolerant than an employer would normally be of conduct of the same kind, that is to say if it were committed by a person who does not have a disability), or there was not. The claim of unfair dismissal The manner in which the claim was advanced[180]It was asserted on behalf of the claimant that the emailed complaints from customers about his conduct on 15 December 2022 were “unsubstantiated”. We doubted that that was the right question to ask. The manner in which an employer reacts to a customer complaint in a claim of unfair dismissal arising from the dismissal of an employee in response to, or in some way as a result of, that complaint, must in our view be assessed by applying the “range of reasonable responses of a reasonable employer” test. The issue of whether or not an allegation is “substantiated” is not a separate test, or part of the “range of reasonable responses” test. Rather, the relevant issue where the dismissal is for conduct is whether there were reasonable grounds for the dismissal.[181]The claimant relied here on the decision of the EAT in Henderson v Granville Tours Ltd [1982] IRLR 494 and that of the Court of Session (Inner House) in Sneddon v Carr-Gomm Scotland Ltd 2012 IRLR 820. That was on the following basis (stated in paragraph 12 of Ms Step-Marsden’s written closing submissions). “The extent to which an employer can rely on allegations made by a third party when reaching a decision on whether to dismiss was considered in Henderson v Granville Tours Ltd 1982 IRLR 494, EAT, where the EAT found it unreasonable to dismiss on customers’ complaints alone, no matter how truthful and reliable the complainants might be. Further investigation is needed, even by small firms, before a reasonable belief in the misconduct can be established. This point was reiterated in Sneddon v Carr-Gomm Scotland Ltd 2012 IRLR 820, Ct Sess (Inner House), a case concerning allegations that an employee had shouted at and bullied a vulnerable care user. The allegations were based on a brief note of the evidence of a single third-party witness given in a short phone call, with no other corroborating evidence, and was strongly contested by the employee. The Court held that, in these circumstances, a reasonable employer would have gone back to the third-party witness to obtain a clearer and more detailed account.”[182]The first of those two cases concerned a situation which was rather different from those which were in issue here, and it was said there that the industrial tribunal in that case had (quoting from the headnote in that case, which was in our view accurate) “erred in law in holding that before dismissing the appellant driver, the respondents had carried out sufficient investigation into the allegations of misconduct made against him by a customer such as to give them reasonable grounds for sustaining their belief that he was guilty of the alleged offences.” That was for the following main reason, which we also take from the headnote. “The Industrial Tribunal should have asked themselves whether or not any reasonable employer, faced with a complaint from a customer denied by an employee, would believe the customer against the employee without further inquiry to ascertain whether there had been any misconduct and to assess the gravity of any alleged misconduct which they believed, after the investigation, to have occurred. In the present case, any reasonable employer would have given the appellant time to consider further a letter which ran to some six pages because it is notorious that a driver presented with complaints some days after the relevant driving has to have time to reconstruct the journey in his own mind if he is going to present any adequate defence at all. There was no reason why an inquiry could not have been carried out with at least the principal persons involved as organisers in the arrangements for the trip. Moreover, no attempt was made to check the allegations with the other passengers. Nor was the appellant given any proper opportunity to defend himself in the sense of answering the complaints and possibly obtaining some statement or evidence in his defence. In the circumstances the Tribunal’s conclusion that there had been sufficient investigation into the matter to give the employers reasonable grounds for believing that the appellant was guilty of the allegations against him could not be sustained.”[183]We wondered whether the EAT had in that case taken fully into account the fact that the “other passengers” were all children. In any event, the decision was in our view very much on its own facts, although it did help to focus our minds on the question of the sufficiency of the respondent’s investigation here.[184]In Sneddon v Carr-Gomm Scotland Ltd, we saw that the headnote started with this paragraph. “The tribunal had not erred in law in holding that a reasonable employer would have carried out further investigations into the allegations of misconduct; Mr Sneddon had been unfairly dismissed. In deciding whether the sufficiency of an investigation into misconduct is adequate, the tribunal necessarily has to examine and consider the nature and extent of the investigations carried out by the employer and the content and reliability of what those investigations reveal before it can reach a view on whether a reasonable employer would have regarded the investigatory process as sufficient in matters such as extent and reliability or as calling for further steps. That decision is essentially one for the assessment of the tribunal, as a specialist, first instance tribunal.”[185]That confirmed our view that it was for us, as the first instance, specialist, tribunal, simply to apply the appropriate tests. The defence of the claim[186]In fact, there were two things which the respondent did which we had difficulty understanding. The first was the failure by Mr Sohanpal simply to send on(1) the claimant’s “chronicle of events” of which there was a copy at pages 385-392, and(2) the document containing what was at pages 218 and 219, to which we first refer in any detail in paragraph 29 above. The second was the failure by Mr Mistry (shown by what we say in paragraphs 109 and 111 above) to permit the claimant to call Mr Vaughan as a character witness. Both of those things were in our view difficult to justify; in fact we saw them as flaws in the procedure followed. But that did not mean that the decision to dismiss and the procedure followed in deciding whether to dismiss the claimant were outside the range of reasonable responses of a reasonable employer, nor did it mean that there were not reasonable grounds for dismissing the claimant for the reasons for which he was dismissed. That was in part because those flaws had to be seen in the context of the gravity of the conduct for which the claimant was dismissed. In addition, in relation to the claimant’s chronicle of events at pages 385-392 and what was at pages 218 and 219, (1) those documents were (in the passage in italics set out in paragraph 85 above) expressly stated by Mr Sohanpal to be available “on request”, i.e. if Mr Mistry (or the appeal decision-maker) wanted them, and (2) the claimant did not himself urge either Mr Mistry or Mr Smith to read and take them into account. As for the calling of a character witness, what the claimant used to do was not necessarily going to be a good indicator of what he would now do if he were not dismissed. The claim of wrongful dismissal[187]Turning to the claim of wrongful dismissal, it is frequently the case (and in some cases at least this will damage the defence of the claim significantly) that the respondent does not adduce evidence from anyone who was personally present at an event which was part of the reason for the claimant’s dismissal. Here, the respondent adduced evidence neither from Mr Shaun Murphy about the telephone conversation between him and the claimant on 15 December 2022 about the Cambridge Road site, nor from any person present at the Westfield site on 15 December 2022. However, in relation to the Cambridge Road site, the respondent did adduce evidence from Mr Butler, to whom Mr Murphy’s email set out in paragraph 24 above was sent, and from Mr Sohanpal, whose note of a conversation with Mr Murphy on 16 December 2022 we have set out in paragraph 45 above. As for the Westfield site, the respondent did put before us an email which purported to have been written by Mr Cripps five days after that event (see paragraph 51 above), and Mr Sohanpal did give evidence (which we accepted) that he had(1) received that email, and(2) on 18 January 2023 spoken to Mr Cripps about its contents in the course of which the latter had confirmed its accuracy (see paragraph 55 above). In addition, on that day (see paragraph 54 above), Mr Sohanpal spoke to Mr Matthews and the latter (we accepted) told the former the things set out in that paragraph. Accordingly, while Mr Sohanpal’s evidence was hearsay, it was by no means flimsy, and at least in relation to the email of Mr Cripps of 20 December 2022 which we have set out in paragraph 51 above, it was to the effect that the latter was a fairly contemporaneous account of the events at the Westfield site of 15 December 2022. The account set out in paragraph 54 above was Mr Sohanpal’s record of what Mr Matthews had told him on 18 January 2023 about the events of 15 December 2022, so that it was a less contemporaneous account of those events. However, as we record in paragraph 141 above, the claimant’s evidence at trial was that “Mark Matthews was the only person who put in an honest statement.” That “statement” (set out in paragraph 54 above) included these things.187.1 The claimant and Mr Cripps exchanged “heated words”.187.2 “[T]hey were both flustered & frustrated”.187.3 Mr Matthews “did hear some ‘industrial’ language from both parties, voices were raised but there was no shouting.”187.4 “[Mr Matthews] approached and asked [the claimant] to go speak to Dave Flynn (patch lead who was also onsite) – or for [the claimant] to go elsewhere (as to avoid any further antagonization)”;187.5 “[Mr Mathews] spoke to [Mr Cripps] who said he didn’t need this extra stress from [the claimant].”187.6 “[Mr Cripps] was visibly shaken.”187.7 “[Mr Cripps] was very upset and worked up and needed some time out and shut himself in the back of the van. [The claimant] left the vicinity and gave [Mr Matthews] & [Mr Cripps] some space”.187.8 “[Mr Cripps] was frustrated & began to take off overalls and was going to go home. [Mr Matthews] persuaded [Mr Cripps] to calm down have a cup of tea and by this time box issues had been resolved by site and work could continue”.187.9 “[Mr Cripps, Mr Matthews and Mr Flynn] finished the outstanding work.”[188]The final words which we have set out in that paragraph were relevant in that they showed in our view that the claimant apologised to customers at least primarily for his own conduct on that day, and probably not, as he later claimed (both in his chronicle of events at page 388 which he first sent to the respondent on 22 February 2023, and in paragraph 40 of his witness statement: see respectively paragraphs 101 and 83 above), also because they might not receive a broadband and telephone service that day. The claimant’s own words, recorded by Mr Sohanpal to have been said on 6 February 2023 and not subsequently challenged, which we have set out in paragraph 80 above (“Martyn spoke to people onsite who witnessed what happened and apologised”) supported that conclusion. The same was true of the point numbered 8 set out in paragraph 82 above.[189]The words which we have set out in paragraph 187.4 above were a request to the claimant to speak to Mr Flynn or go elsewhere in order to “avoid any further antagonization”, which antagonisation we read as emanating from the claimant and not Mr Flynn, that reading being supported strongly by the next four quotations, which we have set out in paragraphs 187.5, 187.6, 187.7 and 187.8 above.[190]The passage in the claimant’s own chronicle of events which we have set out in paragraph 101 above referred to him as feeling “shocked and angry”. He then “approached [Mr Cripps] closer trying to calm him down”, after which the situation “escalated very quickly”, after which, there is this passage (in bold in the original). “I’m not backing down (I said this three times). The fucking site agent has appeared to lie to me ( I was telling him the facts and being assertive by this stage)”.[191]The claimant then refers to Mr Cripps as “sulk[ing]”. That was not respectful in our view.[192]In cross-examination, as we say in paragraph 144 above, the claimant initially said this: “We were within half a metre; I was not pushed up to his face; I was not being aggressive, I was just standing my ground.”[193]In addition, as we record there too, the claimant said this: “[I]t was getting to the stage where I was losing my temper because he was not listening at all.” Our conclusions on the claims made in these proceedings[194]We now state our conclusions on the claims made by applying the legal tests which we state in paragraphs 150-169 above. In the course of doing so, we state our conclusions on the issues set out in paragraph 2 above in so far as they arose on our above findings of fact. We do not answer questions such as “Was the claimant dismissed?”, which is issue 2.1. We also deal only once with each substantive submission advanced by Ms Step-Marsden in support of the claims made, such as the allegation (advanced in several ways) that it was (reading her submissions purposively) unfair within the meaning of section 98(4) of the ERA 1996 to take into account the content of the document at page 253 to which we refer in paragraphs 103-105 and 108 above. Unfair dismissal The reason for the claimant’s dismissal[195]The principal reason for the claimant’s dismissal was his conduct in the form of the manner in which he acted on 15 December 2022(1) on the telephone to Mr Shaun Murphy as first described in the email which we have set out in paragraph 24 above, and(2) as first described in the email from Mr Steve Smith which we have set out in paragraph 37 above. The genuineness or otherwise of the belief that the claimant had committed that conduct[196]Both Mr Mistry and Mr Liam Smith genuinely believed that the claimant had done the things which were first described in those emails. The fairness (or otherwise) of the procedure followed in deciding whether the claimant should be dismissed[197]The procedure which the respondent followed in deciding to dismiss the claimant, taken overall, at least by the time of the dismissal by Mr Liam Smith of the claimant’s appeal against his dismissal by Mr Mistry, was one which it was within the range of reasonable responses of a reasonable employer to follow. In coming to that conclusion, we came to the following conclusions on the issues stated in paragraph 2.5 set out in paragraph 2 above.[198]Issue 2.5.2 There was no requirement to “minute” the meeting at which the claimant was going to be suspended on 16 December 2022, as described in paragraphs 43-49 above. That was because(1) “meetings” within the meaning of paragraph 7 on page 154 needed (see paragraph 71 above) only to be “documented or recorded [with the consent of the employee]”, i.e. not “minuted”,(2) the initial meeting with an employee where there is an allegation of misconduct by the employee may lead to a decision that the allegation need be taken no further, because it is plainly not well-founded, so it is only an exploratory meeting, and(3) what happened here was (we concluded) that the claimant did not on 16 December 2022 respond substantively to the complaint emails in any way, as can be seen from our acceptance (stated in paragraph 46 above), with one reservation, of paragraphs 11-21 of Mr Sohanpal’s first witness statement in preference to the evidence of the claimant to which we refer in paragraph 47 above.[199]Issue 2.5.3 There was no failure “to complete the investigation in a timely manner”. It took Mr Sohanpal 12 days after the claimant’s formal suspension on 6 January 2023 to contact Mr Matthews, Mr Cripps and Mr Flynn: see paragraphs 54 and 55 above. That was not in our judgment an unreasonable delay in the circumstances. What happened subsequently in the investigation (which we describe in paragraphs 59-119 and 130-131 above; parts of those paragraphs are of course not relevant to this issue) was in our view well within the range of reasonable responses of a reasonable employer.[200]Issue 2.5.4 Given what we say in paragraph 103 above, we concluded that Mr Sohanpal’s seeking of what he called “feedback” from 10% of the developers of the 90 or so sites for which the claimant was responsible was done with a view to being able to say positive things about the claimant, not negative things. There was nothing in the documentary evidence before us to contradict that, nor was there anything in that evidence to suggest that Mr Mistry or Mr Liam Smith had a “a strong desire ... to find other evidence to justify dismissal not linked to the complaints being investigated”. Having heard oral evidence from Mr Mistry and Mr Smith, we were satisfied at least on the balance of probabilities that they considered the complaints and evidence against the claimant with an open mind.[201]The manner in which an employee responds to an investigation is capable of being relevant in a number of ways. In any event, in our judgment it was not outside the range of reasonable responses of a reasonable employer to take into account the manner in which the claimant responded to Mr Sohanpal during the investigation by the latter of the former’s conduct after 6 January 2023, as described at page 200 in the passage which we have set out in paragraph 85 above. It was relevant for the reasons stated in paragraph 25 of Mr Liam Smith’s witness statement which we have set out in paragraph 140 above, and there were in our judgment reasonable grounds for concluding that the claimant responded to Mr Sohanpal during the latter’s investigation in the manner described in the passage which we have set out in paragraph 85 above.[202]The word “bullying” is a label applied to conduct of a person in order to show that the applier of the label believes that the conduct of the person in question was seriously wrong. It was submitted by Ms Step-Marsden in paragraph 36(b) of her written closing submissions that the reference in the suspension letter at page 177 to “bullying” (for the relevant text see paragraph 40 above, which must here be read with what we say in paragraph 56 above) “was not consistent with the complaint that R had received [203].” The text of the complaint from Mr Steve Smith is set out in paragraph 37 above. Being “extremely rude and abrupt .. to ... fellow engineers”, using “obscenities and excessive loudness”, was capable of being called bullying as defined in paragraph 128 above, and it was in our judgment well within the range of reasonable responses of a reasonable employer to apply the label of bullying to the conduct described by Mr Steve Smith in the email which we have set out in paragraph 37 above. In addition, as can be seen from what we say in paragraph 127.2 above, it was stated in the respondent’s disciplinary procedure that “Unacceptable behaviour towards customers or colleagues (including but not limited to using inappropriate language ...)” was gross misconduct. Further, in disciplinary proceedings which may lead to dismissal, fairness requires that the employee knows what factual allegations are made, and while the label applied to those factual allegations may affect the way in which a decision-maker views the allegations, as long as the decision-maker approaches the allegations with an open mind, the application of any such label will not in itself take the decision to dismiss outside the range of reasonable responses of a reasonable employer.[203]In paragraph 37(a) of her written closing submissions, Ms Step-Marsden said this. “Mr Sohanpal’s actions infiltrated Mr Mistry’s disciplinary process: a) Mr Mistry relied on the Claimant’s ‘lack of respect, and dignity shown towards his manager during [the] original fact finding’ [251]. He goes further than this, and comments that ‘it took nearly 30 days from the suspension for [C] to attend the fact find’ [251]. This is despite the first invitation being to a fact-finding investigation on 30 January 2023 [182].”[204]The italicised words in that passage were taken from the first two sentences of the final paragraph on page 251, and those words had to be read against the text immediately following those two sentences, which was this. “During this time, Martyn was uncontactable for long periods, and when contact was made, he was often rude and aggressive. This was a common occurrence when reviewing the evidence, and further evidence from developers who were contacted highlighted this. This was also in parrel [sic; i.e. parallel] with the feedback provided regards to his attitude to making things straight forward for customers.”[205]What we say in paragraphs 57-68 above shows in our view that it was something of an exaggeration to say that the claimant was during the period before 6 February 2023 “uncontactable for long periods, and when contact was made, he was often rude and aggressive”. However, in our judgment it was not at all outside the range of reasonable responses of a reasonable employer for Mr Mistry to(a) conclude that the claimant made it difficult for Mr Sohanpal to communicate with him and that when the claimant spoke to Mr Sohanpal, he was rude and aggressive and(b) take those factors into account in deciding whether the claimant should be dismissed.[206]Issue 2.5.5 It was clear that the claimant’s suspension which was imposed on 6 January 2023 and continued during the investigation of Mr Sohanpal was not reviewed formally. However, we concluded that that did not affect the fairness of the procedure followed here in deciding whether or not the claimant should be dismissed. That is for the following reasons. Suspension is not part of a dismissal procedure as such, but a lengthy suspension may affect the fairness of the procedure followed in dismissing an employee. However, it is the impact of the suspension on the fairness of the dismissal procedure which is relevant, and not whether or not the suspension was reviewed. The comments of Elias LJ in Crawford v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 on which Ms Step-Marsden relied in this regard were (in our view correctly) characterised in the headnote of that report to be observations, and while those comments were in our view a highly valuable indication of the manner in which a suspension may be in breach of the implied term of trust and confidence by the employer, such a breach will be relevant to a claim of unfair dismissal only if the employee resigns and claims “constructive” unfair dismissal by reason of the suspension. That, of course, was not the case here. In any event, we concluded that(1) there was no period of material inactivity here during the period of the suspension, and(2) the failure to review the claimant’s suspension formally had no impact on the fairness of the procedure followed in deciding whether or not the claimant should be dismissed.[207]Issue 2.5.6 We saw no evidence to support the contention that “the claimant and his union were not kept informed on investigation progress”. Rather the opposite. That may be why this allegation was not pursued in the closing submissions of Ms Step-Marsden. The closest that she got in her written closing submissions to this issue was in paragraphs 47 and 48 under the heading “The respondent failed to adequately engage and communicate with the claimant and the breakdown in communication was due to the respondent’s refusal to engage with the trade union”. Paragraph 47 was in these terms. “Throughout the course of the matter, C made it clear that he wanted his union representative involved in the matter and that he would benefit from R communicating with his representative directly (eg. [180], [186], [255]). C submits that this was a reasonable adjustment considering his mental health at the time. Despite this, R repeatedly failed to engage with C’s union representative. As a result of this, R continued to blame C for the lack of communication from his representative, and held this against C throughout the procedure.”[208]Given that208.1 the claimant had no difficulty in communicating (on the basis of the evidence to which we refer in paragraph 86 above, we concluded that he did so on occasion rather tersely) with Mr Sohanpal, and208.2 the claimant could not in our view reasonably require the respondent to communicate only through his trade union representative in response to the disciplinary allegations, not least because the claimant was suspended on full pay and was (in our view reasonably) required to “remain contactable during normal working hours and be available for work” (see paragraph 56 above), and to “keep his work phone on” (see the final sentence of the extract set out in paragraph 48 above), the respondent was in our view not acting outside the range of reasonable responses of a reasonable employer in being critical of the claimant for relying on the failure by his trade union representative to make contact with the respondent as a justification for his (the claimant’s) manner of communication (or lack of it) with the respondent.[209]Issue 2.5.7 The question whether Mr Cripps should have been suspended was implicitly raised in this issue. We could not see how the failure to suspend one employee could affect the fairness of the procedure followed in dismissing another employee. The only potential relevance of a difference in treatment would be that one was dismissed and the other was not. That was not a stated issue among the many which were stated.[210]Issue 2.5.8 The fact that Mr Sohanpal recommended disciplinary action for gross misconduct would in our view have made the dismissal unfair if it had had the effect of swaying the judgment of Mr Mistry and Mr Liam Smith. However, as indicated in paragraph 200 above, we concluded that they were not swayed in any way by Mr Sohanpal’s recommendation.[211]Issue 2.5.9 If there had been a breach of the EqA 2010 of any sort in the course of dismissing the claimant, then, we thought, we would have been bound to find that the dismissal was also unfair, although the compensation arising from that breach might, given the decision of the Court of Appeal in Abbey National plc v Chagger [2010] ICR 397, only have been for injury to feelings. However, given our conclusions on the claim of breaches of the EqA 2010 stated below, the dismissal was not unfair because of a breach of that Act.[212]Issue 2.5.10 This issue was, we concluded, another way of putting issue 2.5.6, and in any event, given the things which we say in paragraphs 207 and 208 above, we did not accept that “the respondent failed to adequately engage and communicate with the claimant”. We also did not accept that there was any kind of “refusal to engage with the trade union”. Nor was there, in fact, any kind of refusal on the part of the trade union to engage with the respondent about the claimant’s case. Rather, there was simply an absence of communication by the union to the respondent, and that, it appeared, was the result of the fact that the claimant’s chosen representative, Mr Richards (who was, the claimant told us in his oral evidence, based at the trade union’s Central London branch and not from the claimant’s local branch; the claimant told us that he sought a representative from the Central London branch because he believed that there might be a conflict of interest on the part of a representative from the local branch), did not find the time to communicate with the respondent for a period of time.[213]Issues 2.5.11 and 2.5.19 We concluded, having heard from Mr Mistry and Mr Liam Smith, that they both considered very carefully whether or not the claimant should be dismissed and in doing so they took into account the claimant’s previous disciplinary record and his length of service. We did not see the words “and career” in issue 2.5.19 as adding anything relevant in this regard.[214]Issue 2.5.12 It was not said in relation to this issue in what way the claimant was prejudiced by not being given directly, by Mr Mistry or Mr Liam Smith, the respondent’s Standards of Behaviour Policy. We saw that it was not pressed on behalf of the claimant in Ms Step-Marsden’s written closing submissions that there was any prejudice caused to him by not being sent the Standards of Behaviour Policy as such. The only relevant thing that we could see in this regard was this single-sentence paragraph in the submissions (paragraph 51): “This meant that C was not provided with a key document that he was alleged to have breached.” Given what we say in paragraphs 124-129 above, whether or not it was the case (and we could not see from what was before us to what document Mr Mistry was referring when, as we say in paragraph 124 above, he said he was enclosing a document entitled “Disciplinary policy and procedure”) that the respondent sent the claimant “the Standards of Behaviour Policy”, and whether or not it was “included within the papers for the disciplinary hearing”, the claimant knew well, or if he did not know well, then with only a little effort he could have seen, precisely how the respondent regarded conduct of the sort of which he was accused in the disciplinary proceedings which led to his dismissal: as gross misconduct, for which he might be dismissed.[215]Issue 2.5.13 This issue was much more problematic, for the reasons which we give in paragraph 186 above. However, on one view, the fact (which we will assume) that the claimant had been an exemplary employee in the past could not in any way diminish the impact of what he did on 15 December 2022, and it would have been relevant only if the claimant had shown genuine remorse and a willingness to learn from his mistakes of that day and seek to avoid them in the future. The claimant deprived himself of the opportunity to do that to Mr Mistry, by not attending the disciplinary hearing to which he was invited. The claimant did, however, seek to persuade Mr Liam Smith that he (the claimant) would in the future act properly, but Mr Smith concluded (in paragraph 25 of his witness statement) that the claimant “did not feel like he had done anything wrong”. All of the things said in paragraphs 23-25 of Mr Smith’s witness statement, which we have set out in paragraph 140 above, were relevant in showing how justifiably important that stance of the claimant was to Mr Smith.[216]As for the impact of taking into account what “other customers/3rd parties” said “on the claimant’s performance”, what those other customers (or third parties) said was not about the claimant’s performance as such, it was about the claimant’s conduct towards them (those other customers), and it was sought for (as can be seen from what we say in paragraph 103 above) good reasons, and not with a view to adding to the weight of the evidence against the claimant. In any event, we concluded that it was well within the range of reasonable responses of a reasonable employer to take into account what those other customers said about the manner in which the claimant had provided services to them on behalf of the respondent.[217]Issue 2.5.14 We failed to see how it could be said that “no evidence of any complaints/negative comments the respondent sought to rely on for the dismissal or appeal [was] produced”. In any event, the sufficiency of the evidence before the respondent as far as the law of unfair dismissal was concerned was determinable by reference to the Burchell test, which we have set out in paragraph 152 above. In addressing this issue, we asked ourselves whether it was outside the range of reasonable responses of a reasonable employer not to seek to obtain more evidence on the question whether the customer complaints and negative comments were justified. In answering that question in relation to the Cambridge Road site, we took into account the fact that the claimant did not say at any time that the complaint of Mr Shaun Murphy made in the email set out in paragraph 24 above was not justified. Rather, the claimant sought to justify his stance by reference to the fact that the plans which he had made were changed by Mr Douglas Trail. That was clear from a number of aspects of the evidence before us, including(1) paragraph 49 of the claimant’s witness statement, which we have set out in paragraph 27 above, and(2) what we say in paragraphs 28- 32 above. As for the reasonableness of the grounds for concluding that the claimant did what Mr Steve Smith described in the email set out in paragraph 37 above, we took into account (1) what Mr Sohanpal recorded Mr Matthews to have said in the passage set out in paragraph 54 above read with the opening words of that paragraph, (2) what Mr Cripps wrote in the email set out in paragraph 51 above, read with what we say in paragraph 55 above,(3) the factors to which we refer in paragraphs 72-82 above which showed what was before Mr Mistry and Mr Liam Smith when they considered whether the claimant should be dismissed,(4) the factors relating to the Westfield site to which we refer in paragraphs 187- 191 above in so far as they showed the same thing, and(5) what we say in paragraph 45 above about Mr Sohanpal calling Mr Steve Smith on 16 December 2022 about the email which we have set out in paragraph 37 above. Given all of those factors, we concluded (1) that there were reasonable grounds before both Mr Mistry and Mr Liam Smith for concluding that the claimant did the things about which complaint was made in the emails set out in paragraphs 24 and 37 above, and (2) it was well within the range of reasonable responses of a reasonable employer for Mr Mistry and Mr Liam Smith not to speak personally to Mr Shaun Murphy or Mr Steve Smith about what they said in those emails.[218]Issue 2.5.15 We concluded (as we say in paragraph 200 above) that Mr Mistry and Mr Liam Smith approached the question whether the claimant should be dismissed with an open mind. We concluded that the proposition that the claimant sought “support” by being represented by his trade union was not wellfounded, not least because we accepted the evidence of Mr Mistry in paragraphs 50, 51 and 53 of his witness statement, which we have set out in paragraph 131 above. Nor, given our acceptance of that evidence, did we see any justification for concluding that going ahead with the disciplinary hearing in the claimant’s absence was outside the range of reasonable responses of a reasonable employer.[219]Issue 2.5.16 Given what we say in paragraph 132 above, we concluded that(1) Mr Mistry did not have a discussion with the claimant on 9 December 2022 which was to any extent concerning to Mr Mistry, and(2) during that conversation the claimant did not say to Mr Mistry that he (the claimant) was “planning to walk out into traffic.”[220]Issue 2.5.17 The failure by Mr Sohanpal to send on to Mr Mistry the chronicle of events at pages 385-392 and the pages added by the claimant to the draft report of Mr Sohanpal (pages 218 and 219) was, for the reasons we give in paragraph 186 above, difficult to comprehend, but (given what we say in paragraph 105 above) was made known to the claimant at the latest on 20 March 2023. The claimant did not then say to either Mr Mistry or Mr Liam Smith that they should take that chronicle and those pages into account. Nor did he put them before Mr Smith in person or send them by email or in hard copy to Mr Mistry or Mr Smith. In those circumstances in our view the flaw of not sending on the documents at pages 218, 219 and 385-392 did not take the decision to dismiss the claimant outside the range of reasonable responses in any way.[221]Issue 2.5.20 We rejected the proposition that the respondent “failed to follow disciplinary procedure”. We presumed that that was meant to be a reference to the respondent’s own disciplinary procedure. No specific failure to follow the respondent’s disciplinary procedure was identified on behalf of the claimant as far as we could see: all that was said in this regard was this, in paragraph 77 of Ms Step-Marsden’s written closing submissions: “This is addressed above.” In any event, we saw nothing which in itself, or in combination with anything else, took the procedure followed by the respondent in deciding that the claimant should be dismissed outside the range of reasonable responses of a reasonable employer.[222]Issue 2.5.21 We did not find any material breach of the ACAS Code of Practice on Disciplinary Procedures in the facts as found by us. Alternatively, if there was a breach of that code, then it did not, either in itself or otherwise, take the procedure followed in deciding that the claimant should be dismissed outside the range of reasonable responses of a reasonable employer. For the avoidance of doubt, we concluded that there was no need to review the claimant’s suspension because we concluded that there was no reason to do so in the period during which the claimant’s conduct was being investigated by Mr Sohanpal and Mr Mistry. As for paragraph 9 of the ACAS code, to which reference was made by Ms Step-Marsden in paragraph 14 of her written closing submissions, we concluded that the claimant was indeed given “sufficient information about the alleged misconduct or poor performance and its possible consequences to enable [him] to prepare to answer the case at a disciplinary meeting”. The reasonableness of the sanction of dismissal for the reason for which the clamant was dismissed after the investigation which was in fact carried out[223]As for the question whether the claimant’s dismissal was a reasonable sanction, that was the question whether it was within the range of reasonable responses of a reasonable employer to dismiss the claimant for the conduct for which he was in fact dismissed after the investigation which was in fact carried out. That was a better way of stating the issue numbered 2.5.18.[224]Our conclusion on this issue was that the dismissal of the claimant for the conduct for which he was in fact dismissed after the investigation which was in fact carried out, was not outside the range of reasonable responses of a reasonable employer. Conclusion on the claim of unfair dismissal[225]For all of the reasons stated in the preceding paragraphs above, the claimant’s dismissal was not unfair. Wrongful dismissal[226]The legal issues arising in the claim of wrongful dismissal were as stated in paragraphs 165 and 166 above. Therefore, the first question to ask was whether or not the claimant was in breach of the implied term of trust and confidence. That issue was determinable not by reference to what was in the minds of Mr Mistry and Mr Liam Smith when they decided that the claimant should be dismissed, but, rather, objectively.[227]On our findings of fact in paragraphs 33-35 above, the manner in which the claimant spoke to Mr Shaun Murphy on 15 December 2022 as described by the latter in the email set out in paragraph 24 above (which for the avoidance of doubt we found as a fact was as described by Mr Murphy there) was in our view a breach of the implied term of trust and confidence. So was the manner in which the claimant acted as described by Mr Steve Smith in his email which we have set out in paragraph 37 above, which, also for the avoidance of doubt, we found to have been an accurate summary of the relevant events of 15 December 2022 at the Westfield site. We came to the conclusion that the email set out in paragraph 37 above was an accurate summary of the relevant events of that day at the Westfield site not least because we found the email of Mr Cripps which we have set out in paragraph 51 above and the account of Mr Matthews which we have set out in paragraph 54 above to be accurate and consistent with what Mr Smith said in that email. Our conclusion that that email was accurate was based also on the evidence which we have referred to and in part set out in paragraphs 187-193 above and the underlined parts of the passage taken from page 387 which we have set out in paragraph 101 above, in so far as those parts are not already referred to in paragraphs 190 and 191 above.[228]For those reasons, in our judgment the claimant’s summary dismissal was justified by reason of his breach of the implied term of trust and confidence, and the claim of wrongful dismissal therefore does not succeed. The claims relating to the claimant’s accepted disability of a mental health condition described by him as depression and anxiety[229]Given that in paragraph 57 of the record of the hearing of EJ George on 18 March 2024 (at page 68), it was recorded that “[t]he respondent has conceded that the claimant was disabled by reason of anxiety and depression from December 2022”, we thought that the issues stated in paragraph 5.1 of the list of issues were superfluous, at least in relation to the decision to dismiss the claimant. In any event, our conclusions stated below meant that we did not need to consider those issues further. The claim of direct discrimination within the meaning of section 13 of the EqA 2010 because of that disability: paragraph 6 of the list of issues[230]There was nothing on the facts which we found from which we could draw the inference that the claimant was treated less favourably than he would have been if he had not a disability, or that which the respondent accepted he had (namely anxiety and depression), within the meaning of section 13 of the EqA 2010.[231]In part because of our conclusion stated at the end of paragraph 200 above, namely that both Mr Mistry and Mr Liam Smith approached the question of what disciplinary action, if any, should be taken against the claimant with an open mind, we were satisfied on the balance of probabilities that the fact that the claimant had anxiety and depression had nothing whatsoever to do with the fact that they decided that he should be dismissed. In fact, we concluded, having heard from both Mr Mistry and Mr Smith and considered the other evidence before us, that Mr Mistry and Mr Smith were in no way motivated (using that word in the sense in which it has been described by Underhill LJ in a number of reports of appellate cases, including in Unite the Union v Nailard [2019] ICR 28, at paragraph 72 on page 50) by the fact that the claimant had anxiety and depression.[232]The claim of direct discrimination within the meaning of section 13 of the EqA 2010 because of the claimant’s disability therefore does not succeed. The claim of discrimination within the meaning of section 15 of the EqA 2010; paragraph 7 of the list of issues[233]Issue 7.1.1 We found it difficult to see how there could ever be said to be a “miscategoris[ation]” of a person’s “method and manner of communication as unreasonable” which led to unfavourable treatment of that person within the meaning of section 15(1)(a) of the EqA 2010. The correct question to ask where an employee was dismissed for his or her “method and manner of communication” and relied on section 15 of that Act would be whether it was unfavourable treatment within the meaning of subsection (1)(a) to dismiss the employee for that reason. That was implicitly recognised by issues 7.1.3 and 7.1.4, which were in fact not issues because there was no dispute that the claimant was dismissed by Mr Mistry and that Mr Liam Smith dismissed the claimant’s appeal against that decision of Mr Mistry. In answering the question whether it was unfavourable treatment within the meaning of section 15(1)(a) of the EqA 2010 to dismiss an employee because of his or her “method and manner of communication”, it would be necessary to ask whether that “method and manner of communication” arose in consequence of the employee’s disability and, if it did, whether the dismissal was a proportionate means of achieving a legitimate aim. In any event, the language used in issue 7.1.1 was to our minds inapt in the circumstances of this case. One of the reasons why that was so was that the claimant was not disciplined or criticised for an unreasonable way of communicating, whether by way of its method or its manner. The claimant was disciplined and ultimately dismissed because of his aggressive conduct. Aggressive words can be even more damaging to a relationship than physical aggression. In fact here, on the facts that we have found, the claimant’s conduct was (for the reasons which we give in paragraphs 226-228 above), objectively assessed, a breach of the implied term of trust and confidence. It was, we found (see those paragraphs), aptly categorised (or perhaps the better word would be “characterised”) by Mr Steve Smith in the email which we have set out in paragraph 37 above as “extremely rude and abrupt”, and we found that it was accurately said there that the claimant had on 15 December 2022 at the Westfield site spoken with “obscenities and excessive loudness”. It was also, we found, aptly said in the email set out in paragraph 24 above that the claimant was “nothing but awkward and unreasonable” in the circumstances to which that email related.[234]In any event, we rejected the claim that the respondent “[m]iscategorise[d] the claimant’s method and manner of communication as unreasonable”.[235]Issue 7.1.2 This issue was subject to the same kind of flaws. The claimant was not disciplined or dismissed for being “unreasonable” or using delaying tactics. If he had been, then a relevant question on the facts might have been whether or not the claimant’s “requests to have his trade union representative present in meetings, and therefore require postponements to meetings where he was not available, [were] unreasonable or ... a delaying tactic”. But the real issue would have been whether Mr Mistry’s decision to dismiss the claimant in the circumstance that the claimant did not take up the invitation to respond formally at a meeting in the circumstances shown by what we say in paragraphs 105-119 above was unfavourable treatment (dismissal) “because of something arising in consequence of” the claimant’s anxiety and depression which was not a proportionate means of achieving a legitimate aim. We observe that(1) in paragraph 29 of his witness statement, which we have set out in paragraph 130 above, Mr Mistry was critical of the claimant for causing the delays in the process, and(2) he plainly thought that the delays were not justified. However, what Mr Mistry said in paragraph 29 of his witness statement was not a categorisation of the claimant’s actions in delaying the disciplinary hearing which he (Mr Mistry) was trying to arrange with the claimant attending with a trade union representative, as unreasonable. It was a statement of a belief that those delays were not justified.[236]In any event, we found on the facts that the documents at pages 225-230 supported fully the conclusion that what the claimant did was to use tactics to delay the holding by Mr Mistry of the disciplinary hearing for no apparently good reason in the circumstances, so that we found on the facts that the respondent did not “[m]iscategorise the claimant’s requests to have his trade union representative present in meetings, and therefore require postponements to meetings where he was not available, as unreasonable or as a delaying tactic”.[237]Those conclusions on issues7.1.1 and7.1.2 (and, for the avoidance of doubt, issues 7.1.3, 7.1.4 and 7.2) meant that we did not need to address the issues stated in paragraph 7.3 of the list of issues, but for the avoidance of doubt we came to the following conclusions on those issues.[238]Issue 7.3.1 We could not see a causative link between the claimant’s anxiety and depression and the “manner and method of his communications [appearing] defensive or aggressive at times”. There was (as we say in paragraph 171 above) no medical or other expert evidence before us that there was such a link here, or that anxiety and depression might cause the person suffering from those things to become defensive or aggressive at times.[239]Issue 7.3.2 Similarly, we could not see on the evidence before us anything to justify the conclusion that the claimant’s anxiety and depression caused (in any material way) an inability on his part to “participate fully in hearings without the assistance of a supporter/representative”. In fact, there was evidence to the opposite effect here, since the claimant attended (and we concluded participated fully in) the interview which Mr Sohanpal conducted on 6 February 2023 without a supporter or representative, albeit that he was (we concluded on the facts before us, namely what Mr Sohanpal said in paragraphs 47 and 48 of his witness statement, which we have set out in paragraph 68 above where we say that we accepted those paragraphs of Mr Sohanpal’s witness statement) more at ease than he would otherwise have been if Mr Vaughan had not been present as the note-taker. In any event, we concluded that there was no cogent evidence before us which could have justified a conclusion that the claimant’s anxiety and depression caused him to be more retreating and less assertive than he would have been if he had not had those conditions.[240]Issue 7.3.3 As for the cause of the claimant’s sickness absence between 16 December 2022 and 6 January 2023, that plainly was at least on its face a result of the claimant’s disability. But there was no claim made here of a breach of the EqA 2010 in relation to that absence as far as we could see.[241]As for the question whether the claimant’s dismissal by Mr Mistry and the dismissal by Mr Liam Smith of his appeal against that dismissal were unfavourable things because of something arising in consequence of the claimant’s disability and were not proportionate means of achieving a legitimate aim (and we could not see how the question whether there has been discrimination within the meaning of section 15 of the EqA 2010 can meaningfully be broken down into any more than two bite-sized chunks: the words stand as a whole and have to applied as a whole, but there are two separate issues which need to be addressed separately), that question was not expressly raised in the list of issues. That might have been a result of treating as separate questions issues arising under section 15 of the EqA 2010 which need to be seen as part of a single question, but in any event, we concluded that, given our conclusions stated in paragraphs 238 and 239 above, the claimant’s dismissal and the dismissal of his appeal against that dismissal were not “because of something arising in consequence of” his disability of anxiety and depression.[242]Further, in our view, the claimant’s dismissal and the rejection of his appeal against that dismissal constituted treatment which was a proportionate means of achieving the legitimate aims stated in paragraph 57 of Mr Milne’s written closing submissions (which ran together the three things stated in paragraph 7.5 of the list of issues), which were: “ensuring staff meet the requirements to provide the required level of service to its customers; enabling proper, reasonable, fair and effective management of the workplace and/or the Respondent’s staff; and enabling the Respondent to effectively manage its business and meet its commercial requirements, objectives and compliance obligations”.[243]That was because the things which we have found (as stated in paragraph 227 above) the claimant did on 15 December 2022 were in direct contravention of those legitimate aims, and the respondent reasonably concluded that there was a real risk of the claimant doing something similar in the future if he were not dismissed. In addition, permitting an employee who has committed a breach of the implied term of trust and confidence by being aggressive towards his or her fellow employees to remain in his or her employment, risks undermining the trust and confidence of those fellow employees.[244]Issues 7.6.1 and 7.6.3 So, for the avoidance of doubt, we concluded that the claimant’s dismissal and the rejection of his appeal against that dismissal were “an appropriate and reasonably necessary way to achieve those aims” and in coming to that conclusion we balanced the needs of the claimant against those of the respondent.[245]Issue 7.6.2 It was not “discriminatory” to dismiss the claimant and reject his appeal against his dismissal, so issue 7.6.2 did not arise. The claim of a failure to make an adjustment within the meaning of section 20 of the EqA 2010[246]We can take this claim a little more simply and deal with it a little more succinctly. None of the claimed PCPs set out in paragraph 8.2 of the list of issues was in our judgment a PCP within the meaning of section 20(3) of the EqA 2010. That is because all of them were in our judgment so far as relevant only about ways in which the claimant himself claimed to have been treated. That is for the following reasons.[247]There was before us no evidence that that the respondent would not, as a matter of policy, or in practice,247.1 undertake “a risk assessment for sick or disabled employees”, or247.2 provide “adequate information or evidence in advance of formal meetings, of which an outcome could be dismissal.”[248]As for the other two claimed PCPs, they were plainly an ill-concealed attempt to argue the impossible here, bearing in mind the approach required to be taken by Ishola. That is because there was no evidence before us to justify the assertion that there were here PCPs within the meaning of section 20(3) of the EqA 2010 in the form of248.1 “Not coordinating with employees’ supporter/trade union representative for meetings from mid-January 2023 to 6 April 2023;” or248.2 “Management not keeping in touch with employees during sickness absence by way of absence review meetings, return to work meetings or otherwise – this refers to the period of sickness absence 16 December 2022 to 6 January 2023”.[249]In addition, although on the conclusions stated in the three preceding paragraphs above, the question whether there were any reasonable steps within the meaning of section 20 of the EqA 2010 which could have been taken but were not taken did not arise, we saw that one of the claimed reasonable steps was fanciful. That was the claim that it would have been a reasonable step to “Conduct proper return to work meetings” (paragraph 8.5.4 in the list of issues). Not only was there no evidence to support the proposition that there was here a PCP within the meaning of section 20 of the EqA 2010 of not holding return to work meetings, but it was in our view fanciful to suggest that the respondent needed to conduct a return to work meeting when, on 5 January 2023, the claimant said he was ready to come back to work after starting a period of sickness absence on 16 December 2022 in the circumstances described in the passage of Mr Sohanpal’s witness statement which we have set out in paragraph 48 above, bearing in mind that the claimant was then (see paragraph 56 above) promptly (on 6 January 2023) suspended.[250]It was in our view also not a reasonable step to provide any more evidence to the claimant “in advance of the formal meeting to allow him time to prepare and [thereby] lessen his anxiety”, as claimed in paragraph 8.5.6 of the list of issues. That was in part because(1) the principal question at the meeting which eventually occurred on 6 February 2023 and would have been the principal question at the meeting proposed by Mr Mistry which the claimant did not attend, was what was the claimant’s conduct on 15 December 2022, and(2) it was a proportionate means of achieving a legitimate aim, or alternatively simply not unreasonable, to investigate that question in the way that the respondent normally did here (i.e. by not providing documentary evidence in advance of the first, fact-finding, investigation meeting). It was also not a reasonable step here to give the claimant more evidence in advance of the meeting which took place on 6 February 2023 than would normally be provided to an employee in similar circumstances because the claimant, in our judgment, had no difficulty in responding to questions about his conduct.[251]In any event, the claim of a failure to make one or more reasonable adjustments within the meaning of section 20(3) of the EqA 2010 did not succeed. The claim that unlawful deductions were made from the claimant’s wages, contrary to section 13 of the ERA 1996[252]The claim to night shift payments and dirt and discomfort allowance in 2016 was out of time even in the law of contract as it would have been applied in the county court, i.e. even if the limitation period were six years rather than the two-year period imposed by section 23(4A) of the ERA 1996 as inserted by SI 2014/3322. There was no evidence before us that those deductions were part of a series of deductions which continued after the final claimed unlawful deduction in 2016, which was 5 December 2016, or that it was not reasonably practicable to make a claim in respect of them within three months of that date. Ms Step-Marsden did not suggest otherwise, and the claims stated in paragraphs10.1 and10.2 of the list of issues were in effect (and sensibly) abandoned by the time of closing submissions. They could not, and did not, succeed if only because they were made out of time and therefore were outside the jurisdiction of the tribunal.[253]As for the claim of a failure to pay the claimant such wages as were payable by way of Outer London weighting payments, we came to the following conclusions.253.1 The burden of proving that the claimant was entitled to such payments fell on him.253.2 If he were to prove such an entitlement, then he would have to put before us some evidence supporting the proposition, and not just an assertion to the effect, that in the course of his work from 4 December 2020 until 16 December 2022 he spent (applying the relevant words on page 173) “the majority of [his] time” in the Outer London Weighting zone, which was within the M25 and more than four miles from “King Charles 1’s statue at Charing Cross”.253.3 The claimant provided no such evidence. The only documentary evidence in this regard which he provided consisted in the document at pages 427-430, which was accurately described in the index to the hearing bundle as “London Weighting Buildings data”. As far as we could see, that proved nothing material here.253.4 In any event, it was necessary here to show that there had been a breach of the contract of employment for Mr Butler not to designate the claimant’s place of work as somewhere within the Outer London Weighting Zone.253.5 There was no documentary evidence before us to show that the claimant had asked Mr Butler to change the designation of his (the claimant’s) workplace for London Weighting purposes.253.6 The fact that the claimant was not cross-examined on the point did not mean that the respondent had to be taken to have accepted the claimant’s evidence that(1) he had spent the majority of his time in the Outer London Weighting zone and(2) he had asked Mr Butler to change his workplace designation and Mr Butler had refused.253.7 The claimant did not say in any way when was the time when he “most recently addressed [this issue] with Dave Butler”, as he claimed in the passage of his witness statement which we have set out in paragraph 147 above, nor how, or when, he (the claimant) asked for this decision to be “reconsidered”.253.8 It was not put to Mr Butler in cross-examination that he had been asked by the claimant, and refused, to change the claimant’s designated workplace from the Telephone Exchange at St Johns Well Lane, Berkhamsted, Hertfordshire HP4 1HA.[254]In those circumstances, we concluded that the claimant had not put before us a “prima facie case that [the claimed decision of Mr Butler not to change the claimant’s designated workplace so that he was entitled to Outer London Weighting payments, because he spent the majority of his time in that area, was] at least questionable”, as required by paragraph 57 of the decision of the Court of Appeal in IBM United Kingdom Holdings Ltd v Dalgleish [2018] IRLR 4 which, for the sake of convenience, with the exception of the first sentence, we now set out in full. “In order to decide whether an employer’s decision in a given case satisfies the rationality test we have described (in para [45] above) the court may need to know what the employer’s reasons were and may also need to know more about the decision-making process, so as to assess whether all relevant matters, and no irrelevant matters, were taken into account. The legal burden of proof lies with the claimants throughout. If, however, the claimants show a prima facie case that the decision is at least questionable, then an evidential burden may shift to the employer to show what its reasons were. In such a case, if no such evidence is placed before the court, the inference might be drawn that the decision lacked rationality. However, in all cases the legal burden of proof rests on the claimant.”[255]The claim to an entitlement to be paid Outer London Weighting payments was therefore unsustainable, and it too failed. In conclusion[256]For all of the above reasons, none of the claimant’s claims succeeded, and they were all dismissed. Approved by