Mr A Edun v The Secretary of State for Justice: 3311673/2022

EMPLOYMENT TRIBUNALS

Case No 3311673/2022

Between

Mr A EdunClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Smeaton

Ms G Hughes (instructed by solicitor) for claimant

Mr J Chegwidden (instructed by counsel) for respondent

Date 11 September 2025

JUDGMENT

[1]The Claimant’s claim of direct discrimination because of sex contrary to s.13 Equality Act 2020 has no reasonable prospect of success and is struck out accordingly.

[2]The Claimant’s claim of unfair dismissal will proceed to a final hearing on 6-8 November 2023, subject to the payment of a deposit order.

[1]The Claimant’s complaint of unfair dismissal is not well-founded. The Claimant’s claim is dismissed.

[2]The deposit of £50 paid by the Claimant is to be paid to the Respondent under rule 40 of the Employment Tribunal Rules of Procedure 2024.

[3]The Claimant is ordered to pay the Respondent a contribution to its costs of £20,000 under rule 74(2) (a) of the Employment Tribunal Rules of Procedure 2024 with the deposit of £50.00 deducted from the £20,000 in accordance with rule 40(8) of the Employment Tribunal Rules of Procedure 2024.

[4]The Claimant will pay the Respondent the £19,950 costs due in accordance with the schedule as agreed by the parties. Approved by: JUDGMENT of

REASONS

[1]The Claimant was employed as a prison officer from 7 April 2003 until 25 April 2022, when he was summarily dismissed. The Claimant contacted ACAS on 18 July 2022, and the ACAS Early Conciliation Certificate was issued on 23 August 2022. By presentation of an ET1 claim form, the Claimant issued Employment Tribunal proceedings for unfair dismissal and sex discrimination. However, on 4 April 2023, Employment Judge Smeaton struck out the Claimant’s sex discrimination complaint. The Claims and Issues

[2]The list of issues were set out by Employment Judge Smeaton in her case management order dated. The issues were: 1.Unfair dismissal (s.94(1) ERA 1996)1.1 What was the reason or principal reason for the Claimant’s dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct

1.2 If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether:1.2.1 There were reasonable grounds for that belief;

1.2.2 At the time the belief was formed the Respondent had carried out a reasonable investigation;

1.2.3 The Respondent otherwise acted in a procedurally fair manner;

1.2.4 Dismissal was within the range of reasonable responses.

1.3 The Claimant raises the following specific complaints about the fairness of his dismissal:1.3.1 The investigation officer was insufficiently experienced to carry out a proper investigation into such a serious allegation;

1.3.2 The decision-maker based his decision on a Google search of the Rape Crisis centre and made his decision based on that;

1.3.3 The decision-maker did not take into account what the Claimant said about the allegations being false;

1.3.4 The decision-maker consistently dismissed any possible motive the complainant could have to make false allegations;

1.3.5 The decision-maker failed to take into account the Claimant’s long and unblemished service record;

1.3.6 The decision was predetermined;

1.3.7 There were irregularities, non-disclosures and inconsistencies in the complainant’s evidence suggesting she was lying. 2. Remedy for unfair dismissal

2.1 The Claimant seeks compensation only.

2.2 If there is a compensatory award, how much should it be? The Tribunal will decide:2.2.1 What financial losses has the dismissal caused the Claimant?

2.2.2 Has the Claimant taken reasonable steps to replace his lost earnings, for example by looking for another job?

2.2.3 If not, for what period of loss should the Claimant be compensated?

2.2.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.2.5 If so, should the Claimant’s compensation be reduced? By how much?

2.2.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.2.7 Did the Respondent or the Claimant unreasonably fail to comply with it?

2.2.8 If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

2.2.9 If the Claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?

2.2.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

2.2.11 Does the statutory cap apply?

2.3 What basic award is payable to the Claimant, if any?

2.4 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? Hearing

[3]The hearing was in person over a period of 4 days. I was provided with a bundle of 350 pages and typed witness statements from all the witnesses. I heard oral evidence from the Claimant and Ronan McCarthy (a Prison Officer at HMP Pentonville and the Claimant’s Prison Officers Association (‘POA’) Union representative) and the Respondent’s witnesses, Governor Samantha Cornberg, (at the relevant time Head of Business Assurance and the investigating officer), Ian Blakeman (formerly and at the relevant time Governing Governor of HMP Pentonville and, disciplinary hearing authority) and Ian Bickers (formerly Group Director for the London Group of Prisons and Appeal Authority).

[4]Both Mr Harris and Mr Chegwidden provided written submissions, and oral submissions were approximately 15 minutes each for counsel. Both parties’ submissions were considered carefully.

Findings of Fact

[5]The following findings of fact are made on a balance of probabilities.

[6]Only findings of fact relevant to the issues and those necessary for the Employment Tribunal to determine have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.

[7]I reminded myself that the witnesses were giving oral evidence some 3 years after the relevant events, and as such, some evidence appeared to be contradictory. It does not necessarily mean that one party has lied, as this can arise from an incorrect recollection of events or interpreting events through a particular perception.

[8]I found the Respondent’s witnesses to be predominantly witnesses of truth whose evidence was consistent with the documentation. The Claimant’s evidence was at times inconsistent with the documentary evidence and the Claimant was on occasion evasive, but I found the Claimant to be doing his best with the passage of time to recall matters and give his best evidence. It was apparent to me that Ronan McCarthy gave evidence on that basis of his professional position as a union representative and so felt unable to give evidence on the truth or otherwise of Employee A’s allegations. This was not particularly helpful to the Employment Tribunal, as he was unable to provide any evidence on the credibility of the evidence before the disciplinary hearing authority, as he was giving evidence to defend the Claimant.

[9]The Claimant was employed from 7 April 2003 [48] as a prison officer working at HMP Pentonville. The Claimant had a clean record in his service until November 2022. Week of 22- 29 November 2022

[10]The Claimant was working nights on F wing between 22-29 November 2022. The Claimant was working with a female colleague, “Employee A”, who had only been employed since July 2021. The Claimant had come across this female colleague earlier in around August- September 2021, as she had been working in the purple visits office taking laptops to the F wing.

[11]Employee A alleged that the Claimant had been flirting with her so much that she became uncomfortable and she told this to Officer Francis who had witnessed some of the Claimant’s behaviour. Officer Francis and Employee A were just colleagues not friends. When interviewed on 4 February 2022 as part of the investigation into the Claimant’s later conduct, Officer Francis said that Employee A “..spoke about it, she said she felt uncomfortable. I advised her to do something about it (about the way he is to her) but I don’t recall seeing them both at the same time”. [145] Officer Francis further added, “I told her that she needed to find out where she can get help from. She looked stressed out by the whole situation and mentioned it a few times” [146]. She also confirmed Employee A's impression of the Claimant stating, “one day I went to assist with an issue on the purple visits laptop in F wing. Officer Edun approached me and asked who was working in Purple Visits today. I mentioned Employee A and he got so excited. He was saying ‘oh my god Employee A in Purple Visits today. He then said he was going to go to the Purple Visits office and I said he had no reason to but he said ‘I can go anywhere I want, I work in this prison”[145-146]. Officer Francis added “In myself, I thought ‘wow’, I understood from the way Officer Edun reacted why she would feel uncomfortable. His behaviour really made me cringe” [146]. Incident

[12]The Claimant and Employee A were on night shift on the evening of 28 November into the morning of 29 November 2021 and the shift finished at 07:00 am. On the morning of 28 November 2021, when Employee A was on shift with the Claimant, Employee A alleged in her interview with Samantha Cornberg that the Claimant tried to kiss her in the F2 office and when Employee A rejected the Claimant’s advances, he said that he got gunshot wounds in his heart because she kept rejecting him [83]. Employee A called Officer Olivia Wyatt and stated that she did not want to come into work that evening due to feeling uncomfortable working with the Claimant. Employee A told Officer Wyatt that “…during the week of nights she was completing on Foxtrot wing with Officer Edun, he was making sexual innuendos to her, asking her if she wanted him to drive her home (even though they do not live near each other), he ran after her towards the train station on Caledonian Road to catch up with her, and continuously offered her food that he had made. also told me that Officer Edun had expressed his sexual interest in her, stating that he had recently finished with his ‘girlfriend’ and that he was single. told me that she questioned him as he had already mentioned he had a wife, and he stated he has a wife and a girlfriend” [147]. However, Officer Wyatt encouraged Employee A to speak to management in the evening in order to change duties but still complete her shift.

[13]Employee A was on shift again with the Claimant on the evening of 28 November 2021 and in the early hours of the morning, Monday 29 November 2021 at approximately 04:01 there was a bell, and Employee A left the office to come and check. Employee A then alleges “I go back, and I'm just like to him, I'm taking my break um I had a lip balm in my pocket so I get it out, I put it on and then I just, I hear him in the corner of my ear, I don't know if I can say this but he just basically said F this and then he lunged at me over the sofa, so in the office there's a sofa, like a two seater sofa with the arm parts, there's a table.” [85] Employee A continues saying that the Claimant has “lunged over the arm part of the sofa onto me and he's um basically trying to, he's kissing me um from my ear like down to my mouth. I'm trying to push him off because the tables in front of me I managed to kind of push the table forward a little bit and get him in front of me … as he's come in front of me he's trying to unzip my fleece um so I kind of move to the side to get away from him. He's followed me as I'm going to the door he's kind of shut the door almost … and he's grabbed me from behind, as he's grabbing me from behind he's still trying to undo my fleece and um grab my breasts um he's taken, my radio was hooked on here.” [86] It is clear from the transcript of the interview that Employee A is upset in recalling this detail as Samantha Cornberg asks if she wants her to stop recording for a moment. Then Employee A said that the Claimant took the radio off her fleece and told her that was just in case you accidentally radio someone “all the while he's still holding me and grabbing me, so eventually I managed to get him off me and um in my head I'm thinking I just, I just wanna go home um, my, this coat, it was still on the sofa so I'm thinking it's really cold, it's really cold I just wanna, I just wanna get my stuff and go so I'm asking him for my radio back um, I grab my coat and then that’s obviously when you see me going upstairs to the fours, he's looking to follow me and I tell, like I turn back and I tell him no, I'm going to the toilet like you can't come with me, I’m going to the toilet and he says to me, okay I'll wait for you down here on the twos, um and then I just go to F4, the SO's office on F4 and just lock myself in there for about an hour until it's the time to do the count and then he radioed my radio…” [86-87]

[14]Following the incident at approximately 09:00 on the morning of 29 November 2021, Employee A called Officer Olivia Wyatt and appeared to Officer Wyatt to sound very distressed. Throughout the week, Employee A had told Officer Wyatt that the Claimant had been inappropriate with her, including trying to kiss her, but she had brushed off his behaviour. She told Officer Wyatt in that conversation that the Claimant cornered her in a room on the F1 landing and again attempted to kiss her. The Claimant then exposed his penis to her. Following this conversation, Officer Wyatt then completed an Intelligence Report (‘IR’) [63-69] at 09:49 on the same morning and referred to CCTV footage covering the period of 03:53-04:25 on 29 November 2021. Employee A then reported the incident to the police. Investigation

[15]The Claimant was suspended by Deputy Governor Katherine Lawrence under the Respondent’s disciplinary procedure [70]. The allegations were that the Claimant was alleged to have sexually harassed and assaulted a colleague during the Claimant’s recent set of night shifts between 25 November 2021 and 1 December 2021, and that could potentially amount to gross misconduct. Samantha Cornberg was appointed to be the investigating officer by Governor Katherine Lawrence. Katherine Lawrence set out the terms of reference of what Samantha Cornberg was to investigate. The disciplinary procedure states, “Investigating Officers must be of at least Band 5 Custodial Manager or Hub Manager (or Principal Officer or Executive Officer grade). An Investigating Officer/investigation team must act impartially and independently of undue influence from others.” [258]. Samantha Cornberg was the Head of Business Assurance and a senior manager superior to the Claimant. Samantha Cornberg had received the requisite training in complaints investigations.

[16]The terms of reference document contains a box titled “specialist input”. The box for tackling inappropriate behaviour at work was ticked. Samantha Cornberg understood this to mean, and I accept her evidence that it was signposting a policy called ‘tackling inappropriate behaviour at work’ and she consulted that policy. Samantha Cornberg did not consider that any specialist input was required, or that she needed specialist training in order to undertake the investigation [72]. Since completing her investigation procedure training in April 2019, Samantha Cornberg had done 4 investigations, and by the time she was appointed to do the Claimant’s investigation, she had significant experience in conducting complex investigations. I find that Samantha Cornberg was not inexperienced and that there was no specialist training required in accordance with the Respondent’s policy to carry out an investigation involving sexual harassment or sexual assault.

[17]Samantha Cornberg interviewed Employee A first on 7 January 2022 [74- 97]. In this interview, Samantha Cornberg asked if the contents of the IR were accurate, and Employee A said that they were. [77] Later in the interview Employee A provided additional details of the incident of “onto me and he's um basically trying to, he's kissing me um from my ear like down to my mouth” [85] and “ … as he's come in front of me he's trying to unzip my fleece um so I kind of move to the side to get away from him. ….” [86] and “and he's grabbed me from behind, as he's grabbing me from behind he's still trying to undo my fleece and um grab my breasts um he's taken, my radio was hooked on here” [86] which was not provided in the IR. Samantha Cornberg’s evidence was that she acknowledged that this specific detail was not in the IR. Samantha Cornberg’s evidence was that the fact that there were differences between the IR and the additional detail in the interview may point to Employee A not telling the truth; however, Employee A was in distress when recalling the detail, and she reported the matter shortly after the incident. Samantha Cornberg did not consider that meant that Employee A's story was inconsistent.

[18]It was the Claimant’s evidence that Samantha Cornberg’s line of questioning of Employee A indicated her inexperience in carrying out a fair investigation. The Claimant pointed to the things that Samantha Cornberg said in Employee A’s interview as falsification of facts when Employee A said “ … um I had, well Sunday morning, I had called Miss Wyatt and and said I didn’t want to go into work. Um, obviously like it says in the IR, they advised me to go to the centre and um try to change wings and whatnot but by the time I got there, first there was no one in the centre when I got there…” [81] And then says “… so I kind of just felt more, yeah …” [81] Samantha Cornberg then said in the interview “Yeah, difficult to kind of speak to someone initially then once you’re down on the wing”. Employee A replied, “Yeah”. Then Samantha Cornberg said, “Maybe a bit awkward to go back or….” and Employee A replied, “Yeah, very, very awkward” [81]. The Claimant’s evidence was that Samantha Cornberg’s interview had an undertone of bias in Employee A’s interviews. However, I find that the things that Samantha Cornberg says in the interview are not falsification of facts, as Employee A has already said the things that Samantha Cornberg said. What Samantha Cornberg said was just an interpretation of what Employee A said, and Samantha Cornberg is just repeating it back to Employee A. There is no undertone of bias, but Samantha Cornberg showed empathy in her questioning, which the Claimant accepted as necessary for an investigator.

[19]Samantha Cornberg interviewed the Claimant on 14 January 2022 [98133]. The Claimant did not mention in his interview any specific reason why Samantha Cornberg should interview anyone else. Samantha Cornberg’s evidence is that Ronan McCarthy provided some evidence in the Claimant’s interview that could have been useful; however, she did not consider that it was necessary to interview him formally. Samantha Cornberg was aware that the Claimant said that Mr Mostyn visited the wing in those 7 days regularly. However, Samantha Cornberg did not consider it necessary to interview him. Samantha Cornberg considered that she had sufficient information about matters, which meant she did not need to interview either of those 2 or any other people. In Employee A’s interview, she mentioned staff in the Purple Visits who could give evidence of the Claimant flirting with her.

[20]The Claimant did mention in his interview [129] that he had a discussion with Employee A about a global search on NOMIS in respect of the father of Employee A's child. The Claimant said in the investigation interview that Employee A did not take kindly to the discussion about her child’s father. Samantha Cornberg sets out the Claimant’s defence in her investigation report [163]. I find that the Claimant does not say at that stage that Employee A used his ID to do a search on NOMIS. Samantha Cornberg asked Employee A about this in her interview [165] and Employee A stated that she did not speak about her personal life with the Claimant. Samantha Cornberg’s evidence was that she did note the Claimant’s position that Employee A’s search on NOMIS could be a motivation for Employee A to make up the sexual assault allegation. However, Samantha Cornberg said that she did seek advice from the Commissioning manager, Katherine Lawrence at the time about doing a search on NOMIS and was told that it was not possible to search it. I note that this was not in Samantha Cornberg’s written witness statement; however, I found Samantha Cornberg to be a credible witness, and I accept this evidence.

[21]Samantha Cornberg produced an investigation report. The report had a number of appendices; the IR was labelled Annex C [150] and the email from Officer Wyatt was labelled Annex E [151].

[22]Furthermore, in the main body of the report were quotes from various documents obtained during the course of the investigation. For example, the contents of Officer Wyatt’s 23 February 2022 email were also quoted in the report [157-158].

[23]In her report, Samantha Cornberg stated, “I did not feel it necessary to interview any other members of staff.” [151]. Samantha Cornberg explained in her evidence that she did not see the need to interview any other staff because the people that she interviewed provided sufficient evidence for the allegations. She confirmed that the Claimant did not ask her to interview Ronan McCarthy, Mr Mostyn, Purple Visits office staff or the day staff. Samantha Cornberg’s evidence was that she did not interview the day staff because the Claimant had said in his interview “I offered to let her go early every, every morning, like around half six or 06:45, you don’t have to wait till the day staff come you know,..” [110]. Samantha Cornberg took this to mean that the day staff would not have seen Employee A with the Claimant and so could not provide any useful evidence to assist the investigation. She said that she did not interview the Purple Visits staff because at the end of the interview, Employee A narrowed it down to one specific witness who had seen the Claimant flirting, who was Officer Francis [138]. Samantha Cornberg said in evidence that she did not interview Ronan McCarthy or Mr Mostyn, who was the night orderly on duty on the night/morning of 29 November 2021, because they were not relevant. Ronan McCarthy gave his view on the relationship between Employee A and the Claimant in the Claimant’s interview, so it was not relevant to call Mr Mostyn. I accept Samantha Cornberg’s evidence on this matter.

[24]By letter dated 2 March 2022 from Governor Ian Blakeman, the Claimant was told that he would be required to attend a disciplinary hearing. The letter set out the allegations against the Claimant as:(i) On 29 November 2021, you sexually assaulted Employee A by trying to kiss her and exposing yourself to her.

(ii) On 29 November 2021, you sexually assaulted Employee A by forcing yourself on her and touching her inappropriately.

(iii) During that same set of nights, you sexually harassed Employee A by making comments about wanting to kiss her and making repeated unwelcome advances towards her. [171-172]. The letter warned the Claimant, “At the end of the hearing I will consider the evidence of your alleged misconduct, consider any mitigating factors and come to a decision. I could decide to do one of the following: I. take no further action. II. take informal action e.g. provide you with extra training, coaching or support, III. take formal action e.g. give you a disciplinary warning; remove your eligibility for promotion for a specified period, re-grading; financial restitution; loss of an increment/pay increase or part of an increment/pay increase. IV. take formal action up to and including ending your employment with the Service.” [172]

[25]The letter came with the investigation report, which contained all the appendices and the conduct and discipline policy. I find that the Claimant received the investigation report with the appendices ahead of the disciplinary hearing.

[26]The Claimant was told in the letter that Ian Blakeman would be the hearing authority and which witnesses Ian Blakeman would be calling to the hearing. Attached to the letter was a form with a section for the Claimant to list what witnesses he wanted to call and the name of his union representative. The Claimant’s evidence was that when he received this letter, he was not in the right mindset and that he was upset and he was not functioning. The Claimant did admit that he did communicate with Ian Blakeman to provide the name of his union representative, as the name of the Claimant’s union representative is on the letter inviting the Claimant to the disciplinary [174]. I did not find the Claimant’s response that he was too upset to provide the names of his witnesses credible. I find that, as the Claimant was not too upset to provide the name of his union representative, he could have provided the names of his witnesses or told those names to his union representative. I find he did not because he didn’t want to call any witnesses and didn’t think that there were any witnesses that were of value to call. Disciplinary

[27]By letter dated 22 March 2022 [174] the Claimant was invited to attend a disciplinary hearing for 25 April 2022. The Claimant attended the disciplinary hearing on 25 April 2022 [181-231]. The hearing was conducted by Ian Blakeman, where witnesses would attend when required and the Claimant and union representative Ronan McCarthy had an opportunity (as it is evident from the transcript of the hearing provided) to ask questions of the witnesses and Employee A. Ronan McCarthy was also asked questions as a witness at the hearing. I find that the Claimant had an opportunity to call any witnesses he wished to call at the hearing. At the hearing, the Claimant raised the issues of Employee A's motive for making the sexual assault allegations was that Employee A had used his NOMIS account to search for the father of her child, which he told her off for doing as she did it when he was not in the office at that time.

[28]However, in the disciplinary hearing, Ronan McCarthy asked Employee A “Did you at any point try to do a global search on CNOMIS or ask Mr. Edun to do a global search on CNOMIS?” Employee A denied that she did and Ronan McCarthy stated, “that’s fine”. [197] Ronan McCarthy also stated, “Mr. Edun says that if we actually go through a search, will probably find around that time, what time was that about?” The Claimant replied, “I don’t know what time that was, probably on the Friday though”. Ian Blakeman stated in the meeting, “My understanding there is no way of doing a search on NOMIS, that’s right isn’t it Kat?” Then the Claimant said “that’s fine”[197]. Ian Blakeman explained in the disciplinary hearing that he has come across it before and that there was no way of seeing who searched what at what time [198]. I find that in the disciplinary hearing, the Claimant accepted Ian Blakeman’s position that a search could not be done. Whilst in his final submissions at the disciplinary hearing, the Claimant pondered whether Samantha Cornberg explored whether the search was made [222], the Claimant did not ask Ian Blakeman to ask IT whether a search could be done. In evidence Ian Blakeman explained that he did not see a contradiction between what Employee A said in the investigation meeting when she said that she did not have a personal conversation with the Claimant [140] and what she said in the disciplinary hearing that she did not remember searching on NOMIS and her reply of no, when asked if she was saying that the conversation never happened with the Claimant about NOMIS. Ian Blakeman’s evidence was that this alleged inconsistency was not followed up nor was it raised with him in submissions. I accept Ian Blakeman’s evidence that Employee A’s answers on this point were not inconsistent.

[29]In evidence, the Claimant stated that he knew that it is not the case that NOMIS cannot be searched, however, the Claimant did not provide any evidence in cross-examination as to what this evidence was.

[30]During the disciplinary hearing, Ian Blakeman questioned Officer Wyatt about her account of what she was told by Employee A about the Claimant. The only question that the Claimant asked Officer Wyatt was, “Did she mention to you that I threatened to follow her home if she doesn’t give me her number on Wednesday, did she tell you that?” [216] Officer Wyatt answered “No she didn’t” [212]. But then, when the Claimant says thank you, that’s it, Officer Wyatt says “are you talking about the specific phone call, the first phone call?” [217]. The Claimant’s evidence was that the question he asked Officer Wyatt contradicts the evidence that she stated in her email. However, I find there is no contradiction. There is nothing mentioned in the email about whether Employee A told her that the Claimant threatened Employee A. Furthermore, the Claimant admitted in evidence that this was not a matter that he raised in his disciplinary or appeal. Ian Blakeman's evidence was that he considered that he had evidence from witnesses that the Claimant had asked for, such as Officer Wyatt.

[31]The Claimant also raised that Employee A was smiling in the CCTV footage and then went into the staff room as evidence that Employee A was not rational and that is why the attack did not happen [219]. The Claimant said that she didn’t scream during the attack or run away, after the assault and the CCTV showed Employee A’s body language as not upset. CCTV of the Claimant pulling up his trousers was irrelevant. Employee A did not leave after the attack but returned to work without being requested to even though the Claimant offered her an opportunity to go home early she declined, she left the prison with him and sat next to him on the train [220], Employee A accepted a lift from the Claimant after he allegedly tried to kiss her on the night of 28 November 2021. The Claimant said in the disciplinary hearing that “There is no evidence whatsoever to support such charge, just my word against hers” [220] the Claimant also said “Her only motive is obviously to claim for damages on the grounds of sexual harassment/assault in the workplace. Or maybe after seeing the TSO appointment email for me she’s trying to discredit me from getting the post. These are the only motives I can think of for her to behave like this.” [222]

[32]The Claimant also complained that Samantha Cornberg seemed to sympathise with Employee A, which indicates that she formed a biased opinion from the start [222]. No one who would speak on his behalf was interviewed, and Mr Mostyn and Ronan McCarthy should have been formally interviewed [point 3, 222]. The Claimant pointed out that he had worked for 19 years at the prison with hundreds of female members of staff and had never been accused of anything. [223].

[33]In the disciplinary hearing, Ian Blakeman clarified for the Claimant that he recognised that Mr Mostyn and Ronan McCarthy were not interviewed but that he asked Ronan McCarthy what he discovered when he turned up and Ronan McCarthy said that he did not see anything out of the ordinary. Ian Blakeman said in evidence that he has taken what Ronan McCarthy said into account [223].

[34]Before adjourning the disciplinary hearing to make a decision, Ian Blakeman asked the Claimant if there was anything that he wanted to say before summarising the evidence. The only thing said by Ronan McCarthy is that Ian Blakeman should take into account the inconsistencies of Employee A and he refers to Employee A allegedly forgetting to mention she got a lift home from the Claimant. [225] Ian Blakeman pointed out that it may not have been a matter of Employee A forgetting but that she was not asked, as she did not deny the lift. [225]

[35]In evidence, Ian Blakeman confirmed that he considered all the evidence in the investigation report with appendices, including transcripts of the interview, CCTV and terms of reference.

[36]On return from an adjournment of the disciplinary meeting, Ian Blakeman summarised the evidence [228] and then asked the Claimant if there was anything that he had missed and the Claimant said no. [228] Ian Blakeman then adjourned the hearing and returned to give his decision. Ian Blakeman gave his reasons in detail and found the allegations proven [229]. The Claimant was then given an opportunity to provide mitigation in relation to the penalty to be applied and Ian Blakeman told the Claimant that the outcome was his dismissal. [231]

[37]By letter dated 26 April 2022 [232-235], the Claimant's dismissal was confirmed and the letter set out all the reasons for the Claimant’s dismissal. In that letter, Ian Blakeman told the Claimant that his case was the most serious charge that he, as the Governor, had to deal with [234].

[38]Ian Blakeman expressed in his reasons for dismissal that he did not agree with the Claimant's defence that Employee A did not react in a normal way. Ian Blakeman stated that he had consulted the Rape Crisis Website and that the website confirmed that there is no normal reaction to sexual harassment or assault. [228,233]. Ian Blakeman referred to the website stating there were 5 possible reactions of flight, freeze, flop or friend and that he considered that Employee A’s reaction was closest to friend. He said in the decision that what he saw was an instinctive survival mechanism from Employee A [233] “and that’s why sometimes she's gone along to get along” [228]. The website explained the friend reaction as “'befriending' the person who is dangerous, for example by placating, negotiating, bribing or pleading with them. Again, this is not you giving your attacker consent, it is an instinctive survival mechanism.” [348] The website also states “The freeze, ﬂop, friend, ﬁght or ﬂight reactions are immediate, automatic and instinctive responses to fear” [347] and “All ﬁve responses are our bodies' automatic ways of protecting us from further harm and surviving a dangerous situation”. [348]

[39]I accept Ian Blakeman’s evidence that he had been referred to the Rape Crisis Website from the NHS website and so considered it a reputable website. The Claimant’s evidence was that Ian Blakeman based his entire decision on the information from the Rape Crisis website and that it was not fair that he was not told about the website before Ian Blakeman consulted it so that he had a chance to respond to it and that there was no source for the information put on the website. However, I find that the Claimant was told about the website before the appeal and I accept Ian Bickers’s oral evidence that the Claimant did not raise any issue with the website in his appeal. The Claimant said that he did Google the website before the appeal, as well as look up false sexual assault allegations. What he found was that false allegations do happen. However, he did not give Ian Bickers who heard his appeal any information on what he found or his view on the content or validity of the rape crisis website or on false sexual assault allegations. Notwithstanding, the Claimant admitted in evidence that people do react differently to events and there is not only one way to react.

[40]I accept Ian Blakeman’s evidence that he did not discount the Claimant’s points about Employee A’s reaction on the basis of the website alone, that he had previously dealt with sexual assault and harassment matters and so had previous knowledge. He did not feel the need to tell the Claimant that he was consulting the website because it was for his own benefit to get a better understanding of the arguments that the Claimant was putting forward as it was the Claimant who raised the matter. I find that it was legitimate for Ian Blakeman to look at the Rape Crisis website for further information. It is clear from the rest of Ian Blakeman's decision that his decision was not based solely on the Rape Crisis website at all, but that the information contributed to his findings.

[41]The Claimant also suggested in oral evidence that Ian Blakeman’s conclusion that the Employee A’s reaction would fall within the friend category did not make sense. However, I find that Ian Blakeman’s conclusion did make sense as I accept Ian Blakeman’s evidence that he accepted Employee A's explanations and that after the attack her situation was ongoing, and so there was still a reason for Employee A to remain in fear of the Claimant. Ian Blakeman had asked Employee A in the disciplinary hearing “Why did you come back into the office after he exposed himself?” [193]. Employee A's response was “My stuff had been in office, I went in to just get my stuff. It’s November, it’s cold, my coat’s in there, I just wanted my stuff” [194]. Ian Blakeman also stated that he had asked Employee A “…about her reaction and facial expressions after the assault and in particular why she was smiling. She said she did not break down, was in shock and was laughing at the absurdity of the situation.” [232]

[42]Employee A had said in the investigation interview “he kept making advances, saying he’s not going to leave me alone” [136] and in the disciplinary hearing when asked why she accepted a lift after he tried to kiss her she said “Obviously as someone who's already experienced traumatic issues in the past, it kind of, it kind of brought back flashbacks when he keeps saying I'm not going to leave you alone, obviously the whole week as I explained he would follow me, he would literally be running from the prison to the train station. As a female, you start to feel uncomfortable and you will do literally anything to get the person to leave you alone, so obviously when he offered a lift home, at first I declined it, I said I don’t want you to drop me home, I don’t want you to know where I live, and then he kept going on, so eventually I just accepted it just as a case for him to leave me alone eventually” [192] Ian Blakeman’s evidence was that he accepted her traumatic past as an explanation. I accept Ian Blakeman’s evidence on this point.

[43]Ian Blakeman also stated in his written decision that he found Employee A “to be a credible witness. She explained her reactions such as accepting a lift or not running and this is understandable in the context of the Rape Crisis information highlighted above. I found her to be consistent in all her evidence and what she has said is believable. This evidence has been further backed up by the compelling evidence that was given by Officer Wyatt. The fact that reported this before the incident on 29th November indicates your behaviour was causing real concern. Most importantly though what we heard about the distressed state in which made her first report about the sexual assault to Officer Wyatt gives significant weight to the truthfulness of her version. This contemporaneous reporting is very relevant and was described as emotional and crying. I could establish no reason for Officer Wyatt making this up as nor could I and you failed to supply a credible reason.” [233-234]

[44]In oral evidence, Ian Blakeman explained that his assessment of the Claimant’s evidence was that he did not believe the Claimant’s explanation of why Employee A would have made the allegation up; he considered that it was an extra leap, and he did not find it credible or that it was a credible explanation. He said that the only inconsistency about Employee A’s account that was mentioned by the Claimant at the disciplinary hearing was that Employee A did not mention the lift she took from him, and so she was not telling the truth. However, he said that he accepted Employee A’s explanation for taking the lift that she wanted to avoid trouble and the Claimant would not let up. His view was that Employee A had not been asked about the lift in the first interview, but when it was raised in the second interview, she did explain it.

[45]Ian Blakeman said that he was interested in the credibility of both the Claimant and Employee A, but that he was not sure that previous positive interactions made a difference to whether the incident took place. He did take into account the Claimant’s long service and the fact that as far as he knew, the Claimant had worked with female officers in the past and there was no mention of inappropriate comments but he still believed Employee A over the Claimant. He also considered the possibility that there wasn’t sufficient evidence to come to a conclusion as to whether the incident happened but had decided on a balance of probabilities that Employee A’s evidence was more reliable. I accept Ian Blakeman’s evidence on these points.

[46]In evidence, Ian Blakeman confirmed that he accepted Employee A’s explanations why she did not change wings or report the Claimant’s unwelcome behaviour because she wanted to get through the nights and in combination was not able to see Oscar 1 on his own to be able to report it, she was concerned whether people would take her side if she reported it. I accept his evidence on this point.

[47]Ian Blakeman explained in the dismissal letter that he did not find the Claimant’s defence “compelling” [233] and that he felt that Employee A accusing the Claimant of sexual assault and harassment “would be a completely disproportionate and unrealistic response” and neither did he consider that Employee A welcoming distractions from problems at home “was credible or proportionate and was not a good enough reason” [233] for Employee A to lie about the allegations.

[48]Ian Blakeman stated in the dismissal letter that he “found the version of events given to me by and Officer Wyatt as credible and believable with no reason established for them to be lying. I then asked you for any mitigation before I decided on the outcome. You stated that the allegations were not true and that you had never faced anything like this in 20 years of service.” [234]

[49]Ian Blakeman’s letter ended by explaining the reasons for the penalty of dismissal, stating the Claimant “…had a serious impact on Employee A and relied upon a defence which had no credibility or merit. I explained that staff have a right to work here without the threat of sexual assault and harassment and you denied this to There is no sense that you acknowledge this or accept responsibility for it. I cannot trust that other staff would not be at risk from you and the trust between me as Governor and you has broken down irretrievably.” [234]

[50]The Claimant admitted in evidence that he did not ask Mr Mostyn or Ronan McCarthy what evidence they had provided on their observations of the interactions between himself and Employee A. In the actual disciplinary, it is Ian Blakeman who asks Ronan McCarthy as a witness what experience of interactions he had had with Employee A and the Claimant. Ronan McCarthy gave his view which was that he did not see anything [202]. Ronan McCarthy also confirmed in evidence that he had no recollection of the Claimant asking him to gather witness statements from day staff or anyone else but that if he had he would have obtained those statements. I find that no statements were provided or obtained by Ronan McCarthy or the Claimant from any potential witness, and the Claimant did not believe that there was any evidence that Ronan McCarthy or Mr Mostyn could have that would have assisted his defence, as he admitted in evidence that he accepted that the case was predominantly one of one person’s word against another. Although the Claimant also gave evidence that the evidence of Ronan McCarthy and Mr Mostyn would have been useful, the fact that he did not ask them for their evidence, name them on the form for the disciplinary when he was asked if he wanted to call any witnesses indicates strongly to me that the Claimant did not believe their evidence was of any value to his defence.

[51]Ian Blakeman’s evidence was that he was not presented in the disciplinary hearing with the differences in the account contained the account in Employee A’s interviews of “onto me and he's um basically trying to, he's kissing me um from my ear like down to my mouth” [85] and “ … as he's come in front of me he's trying to unzip my fleece um so I kind of move to the side to get away from him. ….” [86] and “and he's grabbed me from behind, as he's grabbing me from behind he's still trying to undo my fleece and um grab my breasts um he's taken, my radio was hooked on here” [86] and the account of events of the IR, notwithstanding the detail of the Employee A’s account in the interview was missing from the IR report. Ian Blakeman did not consider that the differences meant that the Employee A version of events was inconsistent. He agreed that the IR and interview were different; however, he did not see anything contradictory in this and considered that the reason why there was additional detail was because Employee A had been asked questions in the interview. Ian Blakeman was not in any way surprised by the differences, as it was not Employee A who submitted the IR, which was a summary document. Appeal

[52]The Claimant appealed his dismissal on 29 April 2022 [238, 240-241]. In essence, his grounds of appeal were that there was no evidence to support the charges. Employee A told lies, and her hearing statements and initial interviews were riddled with continuous inconsistencies and pathetic excuses for not taking action and non-disclosures. Samantha Cornberg’s investigation was full of bias as she sympathised with Employee A, Employee A's line about the reasons for not taking appropriate steps if she felt harassed or assaulted, Ian Blakeman accepted Employee A’s excuses and searched the Rape Crisis website and came to an irrational conclusion and did not do a search for false allegations of sexual assault. The claim contained in the police interview and sexual assault allegation were different, Samantha Cornberg was too inexperienced to be investigating such a serious allegation, Deputy Governor Lawrence was heavily involved in the investigation report and influenced Governor Blakeman's decision, Ian Blakeman did not comment on the Claimant’s defence that Employee A was fraudulently trying to claim damages on the grounds of sexual harassment and sexual assault.

[53]The Claimant was invited to attend an appeal hearing with Ian Bickers on 6 June 2022. In the hearing, the Claimant’s representative, Ronan McCarthy put the point to Ian Bickers that he was not sure that Samantha Cornberg was trained to do investigations and it would have been more appropriate to get an outside governor [242]. Ian Bickers asked if there was anyone who could have given a statement in support of the Claimant who was there on the night. The Claimant responded that the orderly officer, Mr McCarthy and SO Darko could have. Ronan McCarthy also mentioned that he did not think that Samantha Cornberg was trained to carry out investigations.

[54]By letter dated 13 June 2022, Ian Bickers upheld Ian Blakeman’s dismissal decision [246]. Ian Bickers’ decision, in essence, was that there was evidence sufficient to support Ian Blakeman's finding that the allegations were proven. He pointed out that the standard of proof is on a balance of probabilities, not beyond a reasonable doubt. He further added in the letter that “sexual harassment type allegations are regarded by the Department as extremely serious” [250].

[55]Ian Bickers explained in the letter that there was nothing to suggest bias and Officer McCarty’s observations were taken into account by Ian Blakeman and that accounts from other colleagues would not have made a material impact on the decision to dismiss. Mr Bicker added in the letter that Ian Blakeman's decision fully accounted for why Employee A acted as she did. The website consulted by Ian Blakeman provides advice on any form of sexual assault, including sexual harassment. The Claimant had an opportunity to make his case and challenge the evidence during the disciplinary hearing. Ian Blakeman was just being considerate of Employee’s A’s feelings when objecting to the CCTV being played. Ian Blakeman considered Employee A’s reaction after the alleged assault, and his decision was well-reasoned and objective. There was no prerequisite for the Police investigation to take precedence over the internal disciplinary investigation. There was no evidence to suggest that Governor Lawrence influenced the proceedings either in respect of Samantha Cornberg or Ian Blakeman. The code of conduct and discipline was followed; there was no reason to question Samantha Cornberg’s experience in handling investigations, and there was no evidence presented to substantiate that the investigation was biased. The investigation report was balanced. Mr Bickers’ stated in his appeal decision that Ian Blakeman did explain that the allegations were disproportionate to the motives that the Claimant expressed that Employee A had.

[56]The Claimant accepted, in evidence, that he has been legally represented throughout the Employment Tribunal proceedings. He accepted that he also had union representation throughout the disciplinary process as well. However, it was in evidence that the Claimant detailed for the first time the alleged inconsistencies & non-disclosures of Employee A’s story.

[57]When it was put to the Claimant in cross-examination that there was no evidence of predetermination of the decision to dismiss, the Claimant referred to the inconsistencies of Employee A’s version of events. I find that the Claimant did not present any evidence of pre-determination.

[58]Ian Bickers’ evidence was that he had not used NOMIS much and so he relied on others who did the investigation that a search could not be done. He did take into account the Claimant’s long unblemished service record from the outset and its relevance to his credibility. The issue of the inconsistency of the Employee’s version of events set out in the investigation interview as compared to the IR was not raised during the appeal. Ian Bickers’ view was that had it been, the 2 records of events were not both the Employee A. It was Officer Wyatt who completed the IR so that could explain the difference between the 2 accounts. He stated in evidence that the Claimant had an opportunity to raise the issue of the website but did not present any evidence to him regarding it and so it was not unfair that the Claimant did not get to comment on it at the disciplinary hearing stage, as he did get to comment on it at the appeal stage. He accepted Ian Blakeman's analysis of Employee A’s reaction, as he too had experience of dealing with sexual harassment and he knew that victims deal with it in different ways. Ian Bickers confirmed in evidence that one of the options available to him regarding the outcome of the appeal was to order a reinvestigation, but his view was that a re-investigation would only be appropriate if Ian Blakeman had failed within policy or his decision was flawed, but he considered that was not the case. He considered whether Ian Blakeman had sufficient evidence to come to a view about who was telling the truth about what happened, as well as who was telling the truth. He considered that Ian Blakeman did have sufficient evidence to sustain his belief of the Claimant’s guilt and that any other suggested witnesses did not have value to determine the issue. The Law on Unfair Dismissal

[59]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[60]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee’. (Abernethy v Mott Hay and Anderson

[1974] ICR 323

, CA.)

[61]Under s98(4) ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.’

[62]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4). However, tribunals have been given guidance by the EAT in British Home Stores v Burchell

[1978] IRLR 379

;

[1980] ICR 303

, EAT. There are three stages:(1) did the respondent genuinely believe the claimant was guilty of the alleged misconduct?

(2) did they hold that belief on reasonable grounds?

(3) did they carry out a proper and adequate investigation?

[63]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the respondent, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the respondents (Boys and Girls Welfare Society v McDonald

[1996] IRLR 129

[1997] ICR 693

[64]Finally, tribunals must decide whether it was reasonable for the Respondent to dismiss the claimant for that reason.

[65]The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for a tribunal to substitute its own decision.

[66]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, CA)

[67]Included in applying the reasonable responses test, the tribunals must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.

[68]Failure by any person to follow a provision of the Code does not, however, in itself render him liable to any proceedings. However, the Code is also relevant to compensation. Under section 207A, if the claim concerns a matter to which the Code applies and there is unreasonable failure by either the employer or the employee to comply with the Code, there can be an increase or reduction in compensation (respectively) according to what is just and equitable of up to 25%.

[69]Under s122(2) of the Employment Rights Act 1996, the tribunal shall reduce the basic award where it considers that any conduct of the claimant before dismissal was such that it would be just and equitable to do so. Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable. Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services

[1987] IRLR 503

, HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed. Analysis/ Conclusions

[70]I considered both parties' oral and written submissions. The Respondent raised the issue during the hearing and in Mr Chegwidden’s closing submissions that the Claimant was raising points in respect of the unfairness of the dismissal that had not been set out in the list of issues. On this I do not disagree with Mr Chegwidden, the Claimant had not raised in the list of issues the unfairness by failure to interview potentially relevant witnesses, unfairness by failure to check the NOMIS issue further and unfairness by failure to provide the Claimant with a copy of the Rape Crisis website information prior to reaching a decision.

[71]I was referred to the cases of Scicluna v Zippy Stitch Ltd

[2018] EWCA Civ 1320

and Parekh v London Borough of Brent

[2012] EWCA Civ 1630

. However, I do not accept Mr Chegwidden’s submissions that the Employment Tribunal should not consider the additional points raised in the course of these proceedings. One of the issues in the list of issues is 1.2.3 which says that the Employment Tribunal must consider whether the Respondent otherwise acted in a procedurally fair manner. The additional issues raised would fall under this issue. Apart from this, in every unfair dismissal complaint under section 98(4) ERA 1996, every Employment Tribunal must determine the complaint in accordance with the equity and substantial merits of the case. This requires me to consider whether the fairness of the dismissal in short hand, regardless of what the other stated issues of the case are. Furthermore, during the hearing, Mr Chegwidden complained that it was unfair to the Respondent to have to address a case that was not in the list of issues and that the Respondent should not be expected to address a case outside the list of issues where the Claimant had been legally represented throughout. However, Mr Chegwidden accepted that the 3 issues not set out in the list of issues were set out in the Claimant’s witness statement and were addressed by some of the Respondent’s witnesses and more importantly, Mr Chegwidden addressed them in re-examination of his own witnesses. Therefore, I could see no unfairness to the Respondent, as to their credit, they came prepared to address the case presented by the Claimant. What was the reason for dismissal?

[72]The Respondent relied upon the reason for dismissal as misconduct and the Claimant did not contest this. The Respondent, as the Claimant’s employer, found that the Claimant put forward and relied upon a defence which had no credibility or merit, and took the view that staff have a right to work at the prison without the threat of sexual assault and harassment and the Claimant denied this to Employee A. There was no sense that the Claimant acknowledged this or accepted responsibility for it. The Respondent could not trust that other staff would not be at risk from the Claimant and the trust between the employer and the Claimant had broken down irretrievably. It is for these reasons that I conclude that the reason for dismissal was misconduct.

[73]The Employment Tribunal then had to consider the Burchell test as the approach of determining whether the Respondent acted within the range of reasonable responses of a reasonable employer. Did the Respondent have a genuine belief in the misconduct?

[74]Ian Blakeman’s decision makes it clear that he genuinely believed Employee A’s version of events and did not believe the Claimant. Ian Blakeman’s explanation (which I accepted) was that he categorically found Employee A a credible witness. Whilst on the other hand, Ian Blakeman’s assessment of the Claimant’s evidence was that he did not believe the Claimant’s explanation of why Employee A would have made the allegation up, he considered that it was an extra leap and he did not find it credible or that it was a credible explanation. The Claimant never challenged Ian Blakeman on this point. I conclude that the Respondent did have a genuine belief in the misconduct. Did the Respondent hold that belief on reasonable grounds?

[75]That the Respondent did not hold the belief that Employee A's allegations were credible on reasonable grounds is the essence of the Claimant’s case. The Claimant’s evidence was that there was not sufficient evidence for Employee A to be believed and so Ian Blakeman did not take into account the Claimant’s defence that Employee A made up the allegations and her motive for doing so was because she had used the Claimant’s ID to access the NOMIS system to find the father of her child and the Claimant had criticised her for this. Furthermore, Employee A’s reaction to the alleged attack was not normal, as she did not report it immediately and came back into the room where she had allegedly been attacked to get her jacket/coat and sat next to him on the train on the way home and Ian Blakeman did not give consideration to the fact that Employee A reacted the way she did because the Claimant was innocent of the allegations.

[76]However, I found that Ian Blakeman believed that there was sufficient evidence on which to believe Employee A. He accepted the Employee A’s version of events regarding the NOMIS system. Ian Blakeman had been involved in trying to check the NOMIS system in respect of another case and so knew that it could not be checked.

[77]Whilst the Claimant referred to a number of inconsistencies in Employee A’s version of events during the hearing and irregularities, he did not raise any of these matters at the disciplinary hearing, except the issue about Employee A not mentioning that she took a lift from the Claimant. I conclude that Ian Blakeman's response to this alleged inconsistency was reasonable in the hearing; he considered that it may not be an inconsistency but that Employee A had not been asked about it in the first interview, and in any event, he accepted Employee A’s explanation for why she took the lift. The Claimant did raise the general question of inconsistencies in the appeal, but he did not go into any real detail of what they were in his grounds of appeal. As such, they were not put before Ian Bickers. But in any event, when asked about the difference between the IR version of the alleged assault and what Employee A said in her interviews about the alleged assault, Ian Bickers said that the inconsistency could be explained by the fact that Officer Wyatt completed the IR and not Employee A. I conclude both Ian Blakeman and Ian Bickers’ views are within the range of reasonable responses of an employer. At the time the belief was formed, did the Respondent carry out a reasonable investigation?

[78]The inexperience of Samantha Cornberg was raised in the appeal but not in the disciplinary hearing, so Ian Blakeman could not consider it. Ian Bickers did consider it and considered that the code of conduct and discipline procedure was followed and that there was no reason to question Samantha Cornberg’s experience. The Claimant did not present any evidence of Samantha Cornberg's inexperience, and Mr McCarthy only said that he thought that Samantha Cornberg was inexperienced, not that she was. The Claimant tried to argue that the code of conduct & discipline procedure was not followed, as the investigator needed specialist training and Samantha Cornberg did not have specialist training. However, I accepted Samantha Cornberg’s evidence that the terms of reference document did not say that specialist training was required. Therefore, I conclude that the Respondent’s decision was in the range of reasonable responses.

[79]The fact that Ian Blakeman sought advice on the reaction of Employee A by looking at the Rape Crisis website was within the range of reasonable responses of a reasonable employer. There was nothing unfair about Ian Blakeman seeking further advice on the Claimant’s assertions that Employee’s A's reaction to the alleged assault was not normal, it was not the entire basis of his findings, and he did not discount what the Claimant said about the reaction in its entirety. He did have his own previous experience and knowledge regarding sexual assault/ harassment matters. It was the Claimant who put Employee A’s reaction into question. Even when the Claimant did have the chance to raise the matter in the appeal, the Claimant admitted in evidence that he did not provide any further evidence of what indicators suggest false allegations, even though he said he looked it up. I accepted Ian Bickers’ evidence that it was not unfair that Claimant did not get to comment on the rape website at the disciplinary hearing, as he did get to comment on it at the appeal, but didn’t present anything to Mr Bickers. It was within the range of reasonable responses for Ian Blakeman to investigate this and Rape crisis website was recommended by NHS and the Claimant did not contest this evidence. Although the Claimant did challenge whether the information on the website was credible as it did not say where the information came from, he did not present any evidence that the information was not credible or any reason why the rape crisis website would provide inaccurate information. Based upon what Employee A told Ian Blakeman about her reaction, I accepted Ian Blakeman’s evidence that he relied on what Employee A said which indicated to him that the situation of fear was ongoing; it was within the range of reasonable responses for Ian Blakeman to consider that Employee A’s reaction was one of ‘friend’ which was one of a range of possible reactions consistent with Employee A having been sexually assaulted. It was also reasonable that Ian Bickers accepted Ian Blakeman’s position as he had experience of dealing with sexual harassment and he knew that victims deal with it in different ways and so he was satisfied with Ian Blakeman’s analysis. The Respondent otherwise acted in a procedurally fair manner

[80]Ian Bickers considered whether the decision was predetermined and concluded that it was not, as there was no evidence of bias. The Claimant referred to Ian Blakeman not wanting to show CCTV as biased but Ian Bickers considered this was Ian Blakeman showing consideration to Employee A. The Claimant did not present any other evidence of predetermination of Ian Blakeman or Ian Bickers to the Employment Tribunal. I conclude based upon what arguments the Claimant presented and the lack of evidence presented by the Claimant that the Respondent’s decision was not predetermined and it was within the range of reasonable responses of a reasonable employer for the Respondent to have concluded that the decision was not predetermined.

[81]I accepted Ian Blakeman’s evidence that he did take into account what the Claimant said about the allegations being false. It is also clear from his dismissal letter that he took it into account as he says he found Employee A more credible and he did not accept the Claimant’s explanations of Employee A’s motive for lying as credible. Both Ian Blakeman and Ian Bickers considered the Claimant’s long service. The Claimant argued that whilst it was clear that long service had been considered in respect of the penalty, it was not considered in relation to the Claimant’s credibility. I accepted Ian Blakeman’s evidence that he considered the Claimant’s long service and the fact that the Claimant did not have prior complaints about inappropriate behaviour but he believed Employee A over the Claimant. Ian Bickers did not make a distinction between the penalty and anything else in relation to the Claimant’s credibility and considered it in the round.

[82]The Claimant argued that because of the seriousness of the allegations that there should have been more investigation into questioning Employee A’s explanations. However, it is worth remembering that a disciplinary procedure is not a criminal trial and it is clear from both Ian Blakeman and Ian Bickers evidence that they considered that they had sufficient evidence to come to the view they had. Ian Bickers said that it was within his power to order a further investigation into matters but he was satisfied that Ian Blakeman’s decision was not flawed and that Ian Blakeman had sufficient evidence to come to the decision of dismissal and additional witnesses suggested by the Claimant did not add any value. Ian Blakeman was able to ask witnesses questions and he did, he was clearly satisfied with the answers given by Employee A which is why he asked the questions that he did. The Respondent did take the matter very seriously. Ian Blakeman states categorically in his letter that this matter was the most serious charge that he has to deal with and Ian Bickers states in his decision letter that “Sexual harassment type allegations are regarded by the Department as extremely serious”. Was dismissal within the range of reasonable responses

[83]Samantha Cornberg did carry out a thorough investigation, following up on the evidence that she was presented with and provided a detailed investigation report. She did not prompt answers but in the example that Samantha Cornberg was asked about in cross-examination, I found Employee A had already said the things that Samantha Cornberg says, and all Samantha Cornberg was doing was just interpreting what Employee A said and repeating it back to Employee A. The Claimant was represented throughout the disciplinary process by his union and given opportunities to call witnesses to his disciplinary hearing and to question witnesses. Ian Blakeman accepted Employee A’s explanation as to why she did not report the Claimant’s behaviour to others, as the Claimant was always there. The Respondent considered whether they had sufficient evidence to conclude that the Claimant was guilty of the allegations and concluded that he was. Ian Blakeman just found Employee A more credible than the Claimant and this was reasonable for him to do so because of the evidence of Employee A and the independent evidence of Officer Wyatt. I conclude that the Respondent’s procedure demonstrates that the matter was investigated thoroughly, commensurate with the severity of the allegations against the Claimant. It therefore would have made no difference to the outcome if matters raised in the Employment Tribunal had been addressed in the disciplinary hearing or appeal.

[84]The dismissal of the Claimant was fair and within the range of reasonable responses of a reasonable employer.

[85]The Claimant’s claim is not well founded and is dismissed. Approved by: