Employment Judge ClarkeIn person for claimantMr Oliver Lawrence (instructed by Counsel) for respondentDate 4 October 2021
JUDGMENT
ON LIABILITY (1) The complaint of unfair dismissal is not well-founded. This means that the Claimant was not unfairly dismissed by the Respondent.
REASONS
[1]The Claimant was employed by the Respondent as a Store Manager. He was dismissed on 16th September 2020 and notified ACAS under the early conciliation procedure on 16th September 2020. The ACAS certificate was issued on 17th September 2020.[2]By a claim presented to the employment tribunals on 12th October 2020 the Claimant complained that his dismissal was unfair. His primary grounds for asserting that the dismissal was unfair are:(1) that the investigation was flawed and the procedure adopted by the Respondent was unfair (for numerous reasons) and(2) that the sanction of dismissal was in any event too harsh.[3]The Respondent resists the claim denying the Claimant’s complaints and asserting that that it acted fairly, reasonably and appropriately and that the decision to dismiss was within the band of reasonable responses and was proportionate.
The Evidence
[4]At the Hearing, the Claimant represented himself and gave sworn evidence. He also called sworn evidence from IIjaz Ahmed, Maariya Nawaz. Moazam Shah provided a statement but was not available to give oral evidence.[5]The Respondent was represented by Counsel, Mr Oliver Lawrence, who called sworn evidence from Mr Max Sefton (Area Manager and Investigating officer), Mr Ronan Phelan (Area Manager and dismissing officer), and Mrs Alexandria Rhoden (HR Case Manager and appeal officer).[6]I was referred to, and considered, documents contained in a bundle comprising 265 pages and witness statements from each witness who gave oral evidence. References to page numbers hereafter are to pages of this bundle. I was also provided and referred to a number of current job adverts in an additional bundle of mitigation documents provided by the Respondent.[7]I also listened to 2 voice recordings of conversations that took place between(i) the Claimant and Kiran Shoukat and(ii) between the Claimant and Mr Mohammed Kamran (Kiran Shoukat’s husband) that were agreed between the parties to be relevant.[8]At the conclusion of the evidence both the Claimant and Mr Lawrence (on behalf of the Respondent) made oral submissions on both liability and remedy.[9]Although Maariya Nawaz’s statement referred to a video of a conversation between herself and Max Sefton, it was in fact an audio recording. The Respondent had not had an opportunity to listen to it prior to the hearing and when given an opportunity was unable to decipher most of what was said. Further, the information provided regarding the recording indicated that it related to a conversation that took place after Ms Nawaz had provided information for the purposes of the investigation into the Claimant’s conduct and did not affect the information that Ms Nawaz provided to the Respondent in the course of the disciplinary process. It did not appear to be relevant to the disciplinary investigation or subsequent disciplinary process and I therefore declined to listen to the recording.[10]As there was insufficient time remaining for an oral judgment, I reserved judgment. The Issues for the Tribunal[11]At the start of the hearing the list of issues relating to liability was agreed between the parties to be: 1. Was the Claimant dismissed for a potentially fair reason within Section 98 of the Employment Rights Act 1996? The Respondent relies on conduct as the reason for dismissal. 2. If the reason was conduct, did the Respondent act reasonably in all the circumstances in treating that as sufficient reason to dismiss the Claimant? In particular:a. Did the Respondent have a genuine belief in the Claimant’s guilt?b. Did the Respondent have reasonable grounds for that belief?c. Did the Respondent carry out as much investigation as was reasonable in the circumstances?d. Was dismissal within the range of reasonable responses? 3. If the Claimant was unfairly dismissed, what award, if any, is the Claimant entitled to? In particular: a. Should the Tribunal order the Claimant’s reinstatement? b. Should there be a reduction of the basic award and/or compensatory award on the basis that the Claimant contributed to his own dismissal by reason of blameworthy conduct? c. Should there be a reduction of the compensatory award to reflect the chance that the Claimant would have been dismissed in any event?[12]The Claimant also wished me to consider whether the personal interest of Max Sefton had swayed the outcome of the investigation and whether the Claimant had been “struck out” of his role as store manager before the investigation.[13]In relation to remedy, both parties provided Schedules of Loss and the main issue between them relates to mitigation of loss. The Claimant has not yet secured alternative employment and claims an ongoing loss, the Respondent asserts that he has not mitigated his losses and should already have secured alternative employment. Relevant Findings of Fact[14]The Respondent is large, well-known, leading retailer of frozen and fresh food products to the public via both online and high street outlets. It employs approximately 29,000 persons, on multiple sites throughout the UK.[15]The Claimant started his full-time employment with the Respondent on 2nd May 2017 as a store manager and initially managed the Respondent’s Slough Store.[16]The parties are agreed that the Claimant was dismissed without notice on 16th September 2020 and that the reason given for the dismissal was gross misconduct. Since 30th April 2017 and at the time of his dismissal, the Claimant held the post of Store Manager at the High Wycombe Store. By 16th September 2020 the Claimant was earning apx £2,974 pcm gross, £2,347 pcm net plus NEST pension contributions.[17]In his role, the Claimant managed a number of staff, including Mrs Kiran Shoukat. He had recruited Mrs Shoukat and had known Mrs Shoukat’s husband, Mr Mohammed Kamran, for a number of years. By July 2020 there was a degree of tension between the Claimant and Mrs Shoukat in relation to matters which the Claimant considered spanned both their working relationship and matters outside the business.[18]The tension appears to have arisen as a result of issues relating to Mrs Shoukat’s working hours and fulfilment of her job responsibilities and the Claimant’s belief that Mrs Shoukat was responsible for spreading rumours at work that the Claimant was sleeping with Mrs Shoukat’s sister-in-law (who had worked for the Respondent and the Claimant was formerly her store manager).[19]The Respondent commenced the disciplinary process which culminated in the Claimant’s dismissal as a result of an e-mail received by the Respondent’s HR hotline on 20th July 2020 [58-59] from Mr Mohammed Kamran is the husband of Kiran Shoukat, who is one of the Respondent’s employees working at the High Wycombe store under the Claimant. Ms Shoukat has limited English and consequently the e-mail came from him on her behalf.[20]In that e-mail, Mr Mohammed Kamran complained that the Claimant had threatened both Kiran Shoukat and her husband and was trying to force Mrs Shoukat’s resignation from the business. He made a number of general complaints regarding Mrs Shoukat’s hours, lack of breaks and criticisms of her shelf-stacking and cited 4 specific incidents of complaint:(i) An occasion when someone else had stacked shelves wrongly but the Claimant had blamed Mrs Shoukat and had deliberately knocked all the sweets off the shelf in anger (“the sweets incident”);(ii) An occasion on which the Claimant had criticised her capability and threatened to make Mrs Shoukat’s life hell for mentioning to other staff something the Claimant had told her about the termination of another employee;(iii) A telephone call received by Mr Mohammed Kamran on 19th July 2020 in which the Claimant had threatened Mr Kamran and accused Mrs Shoukat of telling the Respondent’s staff that he had been sleeping around with Mr Kamran’s sister; and(iv) An incident on 28th July 2020 when he said that the Claimant had caused another staff member to ask Kiran to hand in her resignation and was then told by the Claimant she would be fired when she refused (“The resignation incident”).[21]The Respondent has a disciplinary policy [50-52]. This clearly set outs the disciplinary procedure that will be followed and the potential sanction of summary dismissal for gross misconduct. It includes the following examples of gross misconduct “conduct likely to seriously offend customers, suppliers, visitors or colleagues of the company and that detracts from Iceland’s good name and reputation including swearing/aggressive behaviour/vexatious claims” and “Any act of bullying, harassment, victimisation or discrimination.” There is however no definition as to what might constitute bullying, harassment or victimisation.[22]As a result of the allegation, in accordance with the disciplinary policy, the Respondent commenced an investigation. Although the complaint was received on 20th July 2020, the referral for investigation was not formally recorded on the Respondent’s systems until 24th July 2020, after which it was cascaded to Mr Sefton for investigation. Mr Sefton’s first action was to try to arrange to meet Kiran Shoukat to obtain further information.[23]On 28th July 2020 the Claimant took a period of annual leave until 17th August 2020. He was not aware of the complaint or any of the enquiries being made by the Respondent prior to his period of leave commencing.[24]There were difficulties arranging the meeting with Kiran Shoukat, but there was no deliberate attempt to delay the investigation until the Claimant went on holiday or to conceal the existence of the complaint and investigation from the Claimant prior to his annual leave. It was simply a co-incidence that Claimant’s annual leave occurred at virtually the same time as the investigation commenced.[25]Mr Sefton’s meeting with Mrs Shoukat took place on 29th July 2020 [63-74]. Mrs Shoukat was assisted by her uncle as a result of her difficulties with English. During that meeting she gave further information and provided copies of 2 voice recordings to support her complaint. One recording was of the phonecall that had taken place between the Claimant and Mr Kamran on 19th July 2020 and the other was of the Claimant speaking to Mrs Shoukat on the floor of the warehouse.[26]Following the interview with Mrs Shoukat, on 1st August 2020 Mr Sefton also interviewed Maria Nawaz [75-82], Courtney Warren [83-86] and Simon Hawes [87].[27]The investigation focused primarily on 4 Incidents:a. The sweets incident;b. the resignation incident;c. The telephone call on 19th July 2020 between the Claimant and Mr Kamran (Kiran Shoukat’s husband) (one of the audio recordings); andd. An incident in the warehouse where the Claimant speaks to Kiran Shoukat (the other audio recording).[28]The first the Claimant was aware of the investigation was on 13th August, during his period of leave, when he received a message asking him not to go to the High Wycombe store on his return from leave on 17th August 2020 but to go straight to a meeting with Max Sefton at Greenford so that Mr Sefton could investigate some personal issues. He was not given details until he arrived at that meeting, when he was advised that it was an investigatory meeting in relation to the complaint.[29]That meeting took place between 12 noon and 2:30pm (including 2 short breaks) and was stated to be to investigate whether the Iceland brand name had been brought into disrepute and to establish if a colleague has been bullied and intimated by the Claimant and to decide whether or not there was a disciplinary case to answer. The Claimant was neither accompanied nor given the opportunity to be accompanied to that meeting.[30]Notes of the meeting [88-107] were signed by the Claimant. They show that when told the allegation related to Mrs Shoukat the Claimant said “I believe she must have been put as a leaver as she has resigned… the day before my holiday she swore at me… and resigned in front of witnesses and I made HR aware”. The notes also show that the various allegations were put to the Claimant and he was given an opportunity to respond to them. Also during the meeting, the Claimant named Mohammed Irfan, Simon, Maria, Akifah and Moazam as witnesses to various events.[31]When asked whether he spoke to other members of Kiran Shoukat’s family the Claimant mentioned speaking to her husband “Kam” a month ago. When asked why he had spoken with her husband and what about he gave responses which did not include making reference to the telephone conversation which took place on 19th July 2020 and described his relationship with Mr Kamran as “good. More of a hello/hi business”.[32]The audio recordings were played and the Claimant was asked for his comments upon them. He denied that there was any aggression in his voice in the warehouse recording. In relation to the recording of the call between himself and Mr Kamran he said he had mentioned that he was going to report Mr Kamran to the police and hadn’t mentioned it earlier because it was a private conversation that took place out of work hours and was about personal stuff.[33]At the end of the investigation meeting, the Claimant was formally suspended [107]. A letter confirming his suspension was sent to the Claimant on 19th August 2020 [108] which made it clear that the suspension was on full pay and without prejudice. The reasons given for the suspension were allegations of gross misconduct for behaving in an inappropriate manner towards a member of staff by bullying and intimidating and threatening a member of the colleague’s family which brings Iceland’s name into disrepute. The Claimant was told not to discuss details of the investigation with any colleagues whilst under suspension and given details as to how to obtain any support he might require during this time.[34]Mr Sefton told me, and I accept, that the Claimant would have been suspended earlier had he not been on holiday but as he was on annual leave, he was only suspended on his return.[35]On 20th August 2020 Mr Sefton completed his investigation and produced a report summarising the investigation and his findings [109 - 112]. He acknowledged that he had not interviewed Mohammed Irfan or Akifah (who had by that time left the business) but stated that he was satisfied they would confirm what the Claimant had told him [109]. The report did not mention the other individual (Moazam) who the Claimant has suggested might have relevant information but who was not interviewed by Mr Sefton. Mr Sefton concluded that there was overwhelming evidence that the Claimant had behaved inappropriately towards both the colleague and her husband and that he believed there was a disciplinary case to answer for gross misconduct [112].[36]There had been CCTV footage of the sweets incident, that CCTV footage had not been retained. It is a peculiar feature of this case that that incident had taken place some weeks prior to the e-mail which triggered the disciplinary process but although the footage had been viewed by both the Claimant and Mr Sefton and discussed between them shortly after it occurred, no disciplinary action was taken against the Claimant at that time and the CCTV footage was not referred to in the investigation.[37]Although the Claimant has asserted personal conflict with the investigating officer, Mr Sefton and that the investigation was biased, I find nothing in the way the investigation was conducted or the contents of the investigation report which corroborates that suggestion. I find the questioning of witnesses, as recorded in their signed statements was appropriate and the report itself was a fair and balanced summary of the information in the statements. I am satisfied that any personal conflict which might have existed did not influence the contents of the investigation report.[38]Further, the Claimant’s assertion is at odds with the contemporaneous notes of a telephone conversation that took place on 31st August 2020 between Mr Sefton and Claimant at the Claimant’s instigation [214]. During that call the disciplinary process was explained by Mr Sefton and the Claimant asked whether he should resign and was told that it was not for Mr Sefton to advise. The Claimant was also informed that whatever the disciplinary outcome the Claimant would not be returning to the High Wycombe store but would be re-sited.[39]By a further letter dated 3rd September 2020 [113-114] the Claimant was provided with a copy of an investigation report and invited to attend a disciplinary hearing on 11th September 2020.[40]That letter also informed the Claimant of his right to be accompanied and warned that a possible outcome was summary dismissal.[41]Following receipt of that letter, the Claimant sent a message to the HR department on 6th September 2020 [53] confirming that he would attend the disciplinary hearing and would be accompanied by the Company rep, Ijaz Ahmed. He also asked how to contact Mr Ahmed. He received no response.[42]Further, the Claimant wrote to Respondents on 10th September 2020 [115] stating that he needed further information about the charges, requesting copies of the written evidence and stating that he should be allowed to set out his case and a reasonable opportunity to ask questions, present evidence and call relevant witnesses. He also (wrongly) asserted that bullying and harassment did not come under gross misconduct and could usually be settled informally. The Respondent also did not respond to this letter.[43]The disciplinary hearing took place on 11th September 2020 at the Hounslow store before Mr Ron Phelan and with Naomi Edwards acting as the Company representative and notetaker. Notes of this meeting are at [116-140]. Ijaz Ahmed was not present and there is no suggestion that the Respondent had made any attempt to contact him, request that he attend the hearing to assist the Claimant, or inform the Claimant as to how to contact him directly for this purpose.[44]The meeting notes clearly show that at the outset the Claimant was asked to confirm that he did not wish to be accompanied. He responded “I’m okay. Requested through HR but no-one replied”. He was then asked if he was okay to continue and confirmed that he was. He was asked a further 3 times through the hearing whether he was okay to continue and on 2 further occasions whether he wished to have a representative present. The Claimant always confirmed he was okay to continue and at no point did the Claimant indicate that he wanted a representative present before continuining.[45]The Claimant provided a written statement [150-152], the contents of which were discussed during the investigation and also and showed text messages he had received [144-145]. The audio recordings were played, and the Claimant was asked for his reaction to/comments upon those recordings.[46]During the hearing he was also asked about witnesses that he had mentioned would support his case and was asked if he had mentioned them within the investigation. The Claimant said he had and had expected Mr Sefton to do the further investigation and that he had not brought statements from those witnesses to the hearing.[47]I find that the disciplinary hearing, which took place between 2pm and 4.20pm and incorporated some short breaks, covered all aspects of the allegations against the Claimant in a thorough and careful manner and gave the Claimant ample opportunity to respond to those allegations and put forward any other information he wished to give. The Claimant gave a detailed account in response to the allegations and addressed each of them giving relevant background. Near the end of the interview, the Claimant was specifically asked whether he felt he had had the opportunity to say everything and he confirmed that he had.[48]Following the hearing, and after reviewing the evidence, Mr Ron Phelan decided to summarily dismiss the Claimant on the basis of gross misconduct. He wrote to the Claimant on 16th September 2020 to advise him of this decision and his right to appeal [141-143].[49]The basis of his decision was stated to be that there was sufficient evidence in the witness statements and audio recordings to show that the Claimant had behaved inappropriately towards Kiran Shoukat and her husband and that the Claimant’s behaviour had fallen short of the Respondent’s expectations. Mr Phelan noted that the role of store manager was a position of trust and responsibility and that the Claimant’s tone and behaviour in the audio recordings was unacceptable and the manner in which he had handled Mrs Shoukat’s behaviour was not in line with the Respondent’s expectations. He also placed reliance on the fact that the Claimant had shown a lack of acknowledgement or recognition of the inappropriateness of his behaviour. The letter also addressed, but rejected, the Claimant’s primary procedural complaints about the investigation.[50]Having heard Mr Phelan’s evidence, I find that the letter accurately reflected the basis on which Mr Phelan took the decision to dismiss and the seriousness with which he viewed the Claimant’s behaviour. I am also satisfied that the Claimant's lack of recognition was essentially what tipped the balance between dismissal and a lesser sanction of final warning in favour of dismissal. I note that this lack of insight on the part of the Claimant was equally demonstrated by him in his appeal hearing and throughout his Tribunal claim including during the hearing of this matter in both his oral and written evidence, questions to witnesses and his oral and written submissions.[51]Although other incidents were investigated and referred to in the investigatory report and the disciplinary hearing, and notwithstanding Mr Phelan’s witness statement suggests that he also had in mind the sweets incident when he took the decision to dismiss, this was not reflected in either the dismissal letter or Mr Phelan’s oral evidence. Having heard from Mr Phelan, I am satisfied that the 2 occasions recorded on audio were the sole matters relied upon by the Respondent in reaching the decision to dismiss. Further, that it was the contents of those audio recordings which led to the Claimant’s dismissal. The other incidents in respect of which there was dispute as to what had in fact occurred (in particular the sweets incident and the resigning incident) were not in fact relied upon.[52]Even if I am wrong about this, there was evidence on which Mr Phelan could reasonably conclude that the sweets incident had occurred as stated by Mrs Shoukat: there was a corroboratory account from Courtney Warren, the Claimant did not deny it when it was referred to in the phonecall between himself and Mr Kamran and the Claimant was guarded when asked about it during the disciplinary process.[53]By e-mail dated 22nd September 2020 [56] the Claimant sought to appeal his dismissal. His primary grounds for appealing were that the investigation was flawed and unfair and that the sanction of dismissal was too harsh.[54]He also sent an undated letter [146-149] to the Respondent making detailed submissions regarding his appeal, the thrust of much of which reflected the issues he had raised regarding the investigatory process and his belief that the process was not fair. He represented that the threats to Mr Kamran were not threats and should in any event have been none of the Respondent’s concern (as he was not an employee of the Respondent).[55]His appeal was heard on 9th October 2020 by Ms Alexandria Rhoden with Aimee Tolen present as the company acting as the Company representative and notetaker. Ms Rhoden had not previously been involved in the disciplinary action. Notes of this hearing are at [155-172]. The Claimant was again unaccompanied and was asked whether he wished to be accompanied or was happy to proceed without being represented [155] and the Claimant again indicated that he was happy to proceed unpresented. He had not, prior to the appeal made a further request for a representative to be present.[56]During the appeal the Claimant was afforded the opportunity to expand upon the points made in his appeal letter and the points he raised were explored in detail. He also provided copies of his performance reviews and 3 statements from witnesses he considered to be relevant. During the hearing the Claimant again concentrated on his concerns about the fairness of the disciplinary process and raised a number of new concerns.[57]In particular, he alleged that the decision to terminate him from the business had been taken prior to the disciplinary hearing, whilst he was on holiday, that everyone knew it. He complained that his access to the Respondent’s systems as a store manager was revoked on the first day of his holiday and invoices showed that Samuel Talbot was the store manager.[58]Following the appeal hearing Mrs Rhoden wrote to the Claimant on 22nd October 2020. She confirmed the decision to dismiss and set out her reasons for doing so and for rejecting of the Claimant’s grounds of appeal [173-175]. Her letter addressed the issues the Claimant had raised but found his complaints about the process to be unsubstantiated, the allegations to be serious and the Claimant’s behaviour to have been inappropriate. She also noted the Claimant’s lack of insight or accountability.[59]During the hearing of this claim, the Claimant raised numerous issues relating to his disciplinary process which he asserted rendered the process and outcome unfair. My findings on the further matters he relied upon not addressed above are as follows.[60]The Claimant also pressed upon me that the decision to dismiss had been taken prior to the disciplinary hearing. He relied on a number of points. Firstly, the Claimant asserted that his access to all the company databases had been revoked on the first day of his holiday (28th July 2020). His oral evidence regarding this was unsupported by any documentary evidence but both Mr Sefton and Ms Rhoden denied that his access had been suspended until after his formal suspension. The appeal letter written by Ms Rhoden appears to acknowledge that he was locked out of the systems prior to his formal suspension [173] but I accept Ms Rhoden’s explanation that he was suspended from the systems to mitigate any potential risks and find that the suspension of his access was not indicative of a decision to dismiss having been taken at the point when access was restricted.[61]Secondly, he asserted that other managers were brought in to replace him and were told that it was their store now. I find that the Respondent needed someone to run the store during the Claimant’s annual leave. They therefore initially transferred Mr Talbot, a store manager who lived in High Wycombe and was working his notice period, to provide cover. In order for him to run the store effectively, he was provided with full access and his name appeared on documents as store manager during this period.[62]Mr Ijaz Ahmed was subsequently brought in to manage the store. He had previously been in training. He gave evidence that during a conversation between himself and Mr Sefton prior to the Claimant’s dismissal he was told that the store was his store from now on. I accept that that conversation took place and occurred at some point prior to the Claimant’s dismissal (although Mr Ahmed was vague about when exactly). I do not find that it can be implied from this conversation that the Claimant’s dismissal was inevitable. I accept Mr Sefton’s evidence that across the business, trainees were told to run the shop as though it was their own when handed the reins to a store as part of their training. Also, a decision had been made that whatever the outcome of the disciplinary process, he would not be returning to High Wycombe but would be re-sited and given a fresh start at a different store if not dismissed.[63]The Claimant also relied upon an advert for a Store Manager position [260] posted by the Respondent on 24th August 2020 in support of his assertion that the Respondent had decided to dismiss him prior to his disciplinary hearing.[64]Having seen the advert and heard the evidence of the Respondent’s witnesses, I am satisfied that the advert was a generic advert for a vacancy in the Buckinghamshire, South East England region and was not specific to the High Wycombe store. Further, that the Respondent’s had potential vacancies in that area at that time as one store was being run by an apprentice, and they were permitted to have up to 2 store managers “on the bench” in readiness for future potential vacancies and in any event would often post ads such as this to capture local communities and attract candidates even when a specific job vacancy wasn’t available. I find that the placement of the advert was not related to the disciplinary process against the Claimant and was not indicative of a decision to dismiss the Claimant having already been taken.[65]I am also satisfied that Mr Sefton’s comments regarding the Claimant’s return to the High Wycombe Store made to both Mr Ahmed and to the Claimant (on 31st August 2020) to the effect that the Claimant would not be returning to the High Wycombe Store were not indicative of a decision have been taken prior to the disciplinary hearing. No such decision had been made prior to his disciplinary hearing. The comments merely reflected a decision that he would have been relocated.[66]The Claimant considered it to be unfair that he mentioned a number of individuals during his investigatory meeting who could potentially give evidence on his behalf. Those individuals were never interviewed by the Respondent as part of the disciplinary process. However, the investigation report noted that they had not been interviewed as it was assumed that the Claimant’s account of the evidence that they would give was accurate and I accept the evidence of both Mr Phelan and Ms Rhoden that what the Claimant had said about the evidence they could give was taken at face value (and the contents of the statements provided by the Claimant to Ms Phelan were taken at face value) and was assumed to be favourable to the Claimant.[67]Although the Claimant requested copies of the statements taken from the various witnesses interviewed as part of the investigatory process, they were not provided to the Claimant during the disciplinary process, he was only provided with a copy of the investigation report which summarised the contents of the statements.[68]The Claimant expressed the view that evidence had been tampered with because some of the witnesses had been spoken to informally and asked what had occurred before being asked to give a formal statement with written notes and a notetaker. Whilst I accept that some informal discussion occurred, I do not accept that such discussions in any way affected either the evidence they gave or the course or outcome of the disciplinary proceedings. I am also satisfied that questions asked of witnesses and recorded in the interview notes were appropriate and pertinent, including those questions put to Maariya Nawaz as to the inconsistencies between her evidence and that of another witness, and the nature of her relationship with the Claimant.[69]The Claimant also suggested that Mrs Shoukat was incentivised to provide false information against him because she was offended by the curtailment of her hours and because he had put her on a performance review. He further suggested that she behaved inappropriately towards him, using abusive language from a distance, swearing and shouting and he considered her conduct to be insubordination and misconduct and had commenced formal steps to discipline her regarding this and had sought to provoke him into reacting to her. I was presented with no documentary evidence to support these assertions and accept the information and records provided by the Respondent which show that the Claimant made no formal record on the systems used by the Respondent that suggested that Mrs Shoukat was being disciplined or was on a performance review.[70]My findings in relation to the contents of the audio recordings, which I listened carefully to several times, are as follows:[71]In the recording of the Claimant addressing Kiran Shoukat in the warehouse [transcript 62], the Claimant can be heard saying “ you come into the business that you just do this mood swings and stuff like that … you leave that at home ok … leave it where it came from . are you going come here, come here. I want a word … I don’t want any dramas or anything like that” then later “that’s fine, end of story, I don’t want to hear any more”[72]The Claimant’s tone when addressing Kiran Shoukat in this recording (which took place in an open space in the warehouse during working hours where, on the Claimant’s own acknowledgement, at least 1 other staff member was in the vicintity) was slightly aggressive and the content was inappropriate in a workplace having regard to the Claimant’s position as her manager, in particular his references to mood swings and drama.[73]In the recording of the telephone call between the Claimant and Kiran Shoukat’s husband [transcript 60-61] the Claimant pressed Mr Kamran several times to meet him and included the following statement made by the Claimant “…I’m about to do something tomorrow, I would rather not do it”.[74]When asked what he was about to do, the Claimant gave no direct answer but stated “I don’t have any option, I am telling you something – do you want to meet?” When Mr Kamran continued to decline to meet him the Claimant stated “That’s your choice Kam, Ok you had better ask your Mrs what she started …”. The Claimant then accuses Mrs Shoukat of telling people that he was sleeping around with Mr Kamran’s sister and later in the call states “… that’s a defamation case and I would rather not go behind her back.”[75]Although early in the call the Claimant asserted that he was calling in his own time and it was nothing to do with work, it was apparent that the contents of the call were not wholly unrelated to work as he claimed. He subsequently suggested that Mr Kamran “…ask anybody, ask the whole business she has told every single person in the building” and refers at various points in the call to other employees or former employees of the business whom he manages, or previously managed, by name.[76]Having regard to the Claimant’s tone on the recordings as well as the content, I found this call to be threatening and intimidating, albeit that there is no threat of violence or an express threat to act in a particular way.[77]In relation to the oral evidence that I received, I found Mr Ahmed to be an honest, credible witness who did his best to give an accurate account of events he was concerned with. I found Ms Nawaz’s evidence less convincing. Her evidence was coloured by her own issues with Mr Sefton and her complaints that he called her a liar and asked inappropriate questions which, on the evidence available to me, I do not accept as being true. However, I did not find that the evidence of the Claimant’s witnesses particularly assisted me in light of my finding that the decision to dismiss was founded solely on the contents of the audio recordings.[78]The Claimant’s own evidence was at times unconvincing and was largely unsubstantiated by, and at times was contradicted by, contemporaneous documentary evidence. In particular, his account of the nature and extent of his relationship with Mr Kamran was wholly inconsistent. I also find that he had misinterpreted a number of matters (such as the job advert and Mr Talbot’s name appearing on store documentation) and that his justifications and explanations for his behaviour as evidence on the audio recordings were at times incredible. He could not accept that others might consider his behaviour to be either inappropriate to threatening in any way and became defensive in response to challenges to his behaviour. I did not find him particularly credible.[79]There were minor irregularities and inconsistencies in the evidence of both Mr Sefton and Mr Phelan but these were neither particularly material (as they did not relate to the primary issues raised by this case) nor sufficient to undermine their credibility. Although Mr Sefton’s evidence regarding his failure to ensure retention of the CCTV evidence in relation to the sweets incident was not compelling and I did not find Mr Phelan particularly forthcoming, I found all the Respondent’s witnesses to be generally credible and I was particularly impressed by Ms Phelan’s evidence.[80]Where the evidence of the Respondents witnesses contradicted that of the Claimant and his witnesses, I preferred the evidence led by the Respondent. Relevant Law and Conclusions[81]Section 94 of the Employment Rights Act 1996 (“the 1996 Act”) confers on employees the right not to be unfairly dismissed. Enforcement of that right is by way of complaint to the Tribunal under section 111.[82]The Claimant must show that he was dismissed by the Respondent under section 95 but in this case, the Respondent has admitted that it dismissed the Claimant (within section 95(1)(a) of the 1996 Act) on 1st October 2019.[83]Section 98 of the 1996 Act deals with the fairness of dismissals. There are 2 stages that the Tribunal must consider. Firstly, the Respondent employer must show that it had a potentially fair reason for the dismissal within section 98(2). The burden of proving the reason for the dismissal is placed on the Respondent.[84]Secondly, having established the reason for the dismissal, if it was a potentially fair reason, as then Tribunal has found that it was, the Tribunal has to consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.[85]Section 98(4) of the 1996 Act deals with fairness generally and provides that the determination of the question of whether or not the dismissal was fair or unfair, having regard to the reason shown by the employer:(a) depends upon whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.[86]There is also well-established guidance for Tribunals on the fairness within s.98(4) of misconduct dismissals in the decisions in British Home Stores -v- Burchell [1980] ICR 303 and Post Office –v- Foley [2000] IRLR 827. In summary, the Tribunal must consider whether:(i) the employer had a genuine belief in the employee’s guilt (this goes to the employer’s reason for dismissal, where the burden of proof is on the Respondent);(ii) such genuine belief was held on reasonable grounds;(iii) the employer had carried out a reasonable investigation into the matter;(iv) the employer followed a reasonably fair procedure; and(v) dismissal was an appropriate punishment as opposed to some other disciplinary sanction, such as a warning. In relation to (ii), (iii), (iv) and (v) above, there is a neutral burden of proof.[87]In considering all aspects of the case, including those set out above, and in deciding whether or not the employer acted reasonably or unreasonably within section 98(4) of the 1996 Act, the Tribunal must decide whether the employer acted within the band of reasonable responses open to an employer in the circumstances.[88]It is also immaterial how I would have handled events or what decisions I would have made. I must not substitute my view for that of the reasonable employer – Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439, Sainsbury's Supermarkets Limited –v- Hitt [200]3 IRLR 23, and London Ambulance Service NHS Trust –v- Small [2009] IRLR 563. Potentially Fair Reason for Dismissal[89]In this case, it is not in dispute that the reason that the Respondent gave for the Claimant’s dismissal was that it believed that the Claimant was guilty of gross misconduct by reason of behaving inappropriately towards a member of staff by bullying and intimidating them, and also by making a threat to a member of the colleague’s family.[90]No alternative reason for the dismissal has been advanced by the Claimant and the evidence before me did not raise any alternative. Having heard the evidence of Mr Phelan, who took the decision to dismiss the Claimant, I am satisfied that this was reason for the dismissal. As misconduct is a potentially fair reason for dismissal under section 98(2)(b) the Respondent has therefore satisfied the requirements of section 98(2). Genuineness of Belief[91]Having heard from the Respondent's witnesses orally, as well as receiving their written evidence, I find that all the Respondent’s relevant management, Mr Sefton, but most importantly Mr Phelan and Mrs Rhoden, held a genuine belief that the Claimant was guilty of misconduct, namely behaving inappropriately towards a member of staff by bullying and intimidating them, and also by making a threat to a member of the colleague’s family.[92]Mr Phelan’s evidence was clear and unequivocal about why he dismissed the Claimant and Mrs Rhoden’s evidence was equally clear about why she dismissed the appeal. The dismissal letter [141-143] and the appeal hearing outcome letter [173-175] are also consistent with their evidence and with them holding a genuine belief.[93]The Claimant did not seriously challenge the genuineness of the Respondent's management’s belief and offered no independent evidence to contradict it or any obviously viable alternative. Reasonable Grounds for the belief[94]For the reasons set out more fully in my findings of fact above, I find that Mr Phelan and Ms Rhoden relied substantially on the audio recordings as the basis of their belief in the Claimant’s misconduct and indeed, the decision to dismiss was based solely on the behaviour of the Claimant in those recordings and his lack of recognition or remorse about the inappropriateness of his behaviour.[95]The audio recordings were not suggested to be inaccurate in any way. Although the Claimant proffered explanations and context for his behaviour, the veracity of the contents of the recordings was not challenged, the Claimant merely represented that the audio recording in the warehouse did not tell the whole story.[96]The recordings provided uncontrovertible objective evidence of the Claimant’s conduct and I find provided a reasonable foundation for the Respondent’s genuine belief.[97]The Claimant’s explanation for his actions was largely unsubstantiated by any corroborating evidence and it was not beyond the range of reasonable responses for the Respondent to find that the Claimant’s explanation did not in any event excuse his behaviour. Accordingly, I am satisfied that the Respondent’s genuine belief was held on reasonable grounds.[98]I am also satisfied that the Respondent’s managers reasonably believed that there was a sufficient nexus between the telephone call to Kiran Shoukat’s husband and the Claimant’s employment to justify its inclusion in the disciplinary process.[99]Notwithstanding that the call took place outside of working hours and the Claimant expressly stated that it was not related to work in the early part of the call, there were reasonable grounds for that belief:(i) The call was to the husband of Mrs Shoukat, one of the Claimant’s subordinate staff members;(ii) During the call the Claimant referred to things which had taken place at work and to Mrs Shoukat’s conduct at work,(iii) During the call the Claimant also refers by name at various points to other employees or former employees of the business whom he manages or previously manged. In these circumstances, I do not consider that it was outside the range of reasonable responses for the Respondent to conclude either that the contents of that call were likely to have an impact on the working relationships within the Store or that there was sufficient nexus to the Claimant’s employment for it to be considered as part of a disciplinary process. Investigation and Procedure[100]I must also consider therefore whether, at the time the belief was formed, the Respondent had carried out as much investigation into the matter as was reasonable in the circumstances.[101]The allegations of bullying, harassment and intimidation and conduct likely to seriously offend customers, suppliers, visitors or colleagues of the company were a serious. Not only does such conduct amount to gross misconduct justifying summary dismissal under the Respondent’s disciplinary policy, but a dismissal for misconduct of this nature may have more far-reaching consequences and impact the Claimant’s prospects of obtaining similar managerial roles elsewhere.[102]The Respondent in this case is a large organisation, employing around 29,000 people and operating a number of different sites. It has an extensive management structure, as indicated by the status and job descriptions of the 3 witnesses who gave evidence on behalf of the Respondent, and the contents of their evidence as regards the nature of the Respondent. It also has substantial administrative resources, as evidenced by the presence of notetakers at, and transcription of notes from, the various hearings during the disciplinary process as well as the existence of a written disciplinary policy and an online administrative system (Nexus).[103]I have the band of reasonable responses and these factors clearly in mind in reaching my decision as to whether the investigation was reasonable in the circumstances.[104]Taking all the circumstances into account, I find that there were no substantive deficiencies in the extent and quality of the investigation conducted by the Respondent.[105]The Claimant complains that it was unfair that he was not given preparation time before his investigatory meeting nor was he allowed to be accompanied by a companion. I note that there is no ACAS or statutory requirement for an employee to be given the right to be accompanied at an investigatory meeting and the investigatory meeting is not be itself a disciplinary action. Although I accept that the Claimant was not afforded these opportunities, I do not find that no reasonable employer would have failed to offer such opportunities or that the failure to do so rendered the investigation unfair. Nor did the investigatory meeting by itself result in the subsequent disciplinary action, rather the decision to pursue disciplinary action was based primarily on the content of the audio recordings.[106]For the reasons set out above at paragraphs 35-38, 60 and 68 I do not accept that Mr Sefton’s investigation was biased, unfair or influenced by any personal issues between the Claimant and Mr Sefton, or that witnesses were tampered with.[107]Although witnesses suggested by the Claimant were not interviewed by the Respondent as part of the disciplinary process, as per my findings at paragraph 65 above, there was no need for the Respondent to do so as the Respondent assumed that the Claimant’s account of the evidence that they would give was accurate and favourable to the Claimant. Further, I am satisfied that they would not have been able to provide any material which would have impacted on the disciplinary process or outcome.[108]None of the potential witnesses mentioned by the Claimant were present at either of the occasions which were recorded and their evidence was assumed to be favourable to the Claimant and to support his account so that the failure to interview these persons was in no way detrimental to the Claimant.[109]Ultimately, the decision to dismiss was based on the unchallenged audio recordings which provided objective evidence of the Claimant’s behaviour. Whilst incidents other than those contained in the audio recordings were investigated, they were not ultimately relied upon. Had they been, further investigation might have been necessary, but in the circumstances no further investigation would have been likely to have altered the course of the disciplinary process or led to a different outcome.[110]In all the circumstances, it was therefore neither outside of the range of reasonable responses not to interview these witnesses, nor did the failure to do so render the investigation or the disciplinary proceedings unfair.[111]The Claimant also suggested that the investigation was unfair as Kiran Shoukat’s uncle was permitted to be involved in the investigation as he was an “outsider”. However, there was no evidence that he had manipulated evidence or affected the complaint. He simply facilitated Kiran Shoukat giving information and I do not therefore consider that his involvement rendered the disciplinary process unfair, affected the outcome or was outside the range of reasonable actions available to the Respondent.[112]Additionally, the Claimant asserted that the Respondent should not have considered audio recordings that were made without his knowledge and consent. The Respondents were not bringing criminal charges or bound by the criminal rules of evidence, the material was clearly pertinent and its veracity was not challenged. I do not therefore accept that their reliance on such recordings rendered either the investigation or subsequent disciplinary proceeds unfair.[113]The Claimant also asserted that the procedure adopted by the Respondent in relation to the disciplinary hearing was unfair.[114]He complained that he was not provided with the full statements taken from witnesses in advance of the disciplinary hearing, but only the investigation report. I accept that was the case but note that fairness requires the Claimant to know and have opportunity to address the allegations against him and even the ACAS Code does not suggest that it is mandatory to provide copies of the statement saying, at paragraph 9, only “…it would normally be appropriate to provide copies of any written evidence, which may include witness statements..”[115]Both the statements and the investigation report were available to me and as per paragraph 37 above, I find that the Investigation report provides an extensive and fair summary of those statements. Accordingly, the Claimant was not disadvantaged in either understanding the allegations against him or preparing for the disciplinary hearing by not being provided with the full statements and I find that it was not outside of range of reasonable responses to provide only the investigation report.[116]For the reasons set out more fully at paragraphs 61-65 above, I am satisfied that no decision to dismiss the Claimant had been made prior to his disciplinary hearing.[117]The Claimant also complained that he did not have the opportunity to fully state his case, bring evidence forward and cross-examine witnesses. I do not agree. The Claimant’s own correspondence prior to his disciplinary hearing [115] made it clear that he understood his right to present his own evidence at the hearing and he brought 3 witness statements to his appeal. Further, there is no ACAS or statutory entitlement to cross-examine witnesses and contrary to what appear to have been the Claimant’s expectations, employers are not expected to meet the same rigorous standards in disciplinary proceedings as are expected in a criminal investigation and a criminal court and failure to do so does not render the process unfair.[118]However, the Respondent’s actions during the course of the disciplinary process are not above reproach. The failure to retain the CCTV of the sweets incident was an inexplicable oversight. Further, there were several occasions on which they failed to respond to correspondence sent by the Claimant. Those failures, though regrettable and likely to undermine the Claimant’s confidence in the disciplinary process, did not however substantively impact on the process itself and did not ultimately affect the outcome.[119]Although the Claimant’s request for copies of evidence was unanswered, for the reasons set out above at paragraphs 114-115 I do not find that there was an absolute entitlement to the same or that the Respondent’s failure to accede to the request rendered the process unfair.[120]There was one clear error in procedure by the Respondent: The Claimant was not accompanied at the disciplinary hearing despite his explicit notification to the HR department that he wished to be accompanied and his request that the HR department assist him with this. They did not do so and indeed, did not respond at all to his communication.[121]Nevertheless, the Claimant was not forced into going ahead with the disciplinary hearing in the absence of representation/accompaniment. As set out above at paragraphs 43-44 above, the Claimant was repeatedly asked whether he was happy to proceed in the absence of representation/accompaniment and on each occasion stated that he was.[122]Further, the Claimant did not repeat his request to be represented or accompanied at his appeal hearing and again provided assurances that he was happy to proceed with the appeal without representation/accompaniment.[123]In both cases it was open to the Claimant to indicate that he was not happy to proceed unaccompanied and he was afforded numerous opportunities to do. Where the Claimant did not but indicated repeatedly that he was happy to proceed, I cannot find that it was outside the range or reasonable responses for the Respondent to continue with the disciplinary hearing notwithstanding the Claimant’s earlier request had been ignored, or that by doing so the disciplinary process was rendered unfair.[124]Having considered all the circumstances and the range of reasonable responses of the employer, for all the reasons set out above, I find that none of the specific matters the Claimant raises regarding procedural unfairness in fact adversely affected the fairness of either the investigation or the subsequent disciplinary process.[125]Even if I am wrong regarding this, as I am satisfied that the decision to summarily dismiss was based solely on the content of the audio recordings, I am satisfied that any defect in the investigatory process would not have affected the outcome of the disciplinary hearing would have been unaltered even if or impacted upon/adversely affected the decision to dismiss. Proportionality of Sanction[126]I have no hesitation in finding that on the basis of the genuinely held and reasonable belief of the Respondent’s managers that the Claimant had been guilty of behaviour that amounted to bullying, harassment and intimidation of a subordinate colleague and conduct likely to seriously offend customers, suppliers, visitors or colleagues of the Respondent company that it was within the range of reasonable responses for the Respondent to characterise the Claimant’s actions as gross misconduct and to decide that summary dismissal was the appropriate punishment for such an act.[127]Although the Claimant has asserted that bullying, harassment and intimidation are not gross misconduct offences and should be dealt with by way of medication not disciplinary proceedings, the Respondent’s disciplinary procedure clearly categorises both this and conduct likely to seriously offend customers, suppliers, visitors or colleagues as gross misconduct justifying summary dismissal.[128]Although this was a first disciplinary offence, and I was directed to unchallenged evidence of the Claimant’s past positive performance and successes [179-189] I am mindful that I must not substitute my view for that of the Respondent.[129]The Claimant put forward mitigation for his behaviour, namely Mrs Shoukat’s behaviour towards him (see paragraph 68 above). Nevertheless, the Claimant was Ms Shoukat’s manager, and I find it was within the range of reasonable responses for Mr Phelan to conclude that even if there had been provocation, it did not excuse the Claimant’s language or tone or render the Claimant’s behaviour towards a subordinate acceptable or mitigate his behaviour sufficiently so as to justify a lower sanction than dismissal.[130]Further, as set out above, the evidence amply demonstrates that the Claimant lacked insight into, or understanding of, his behaviour, was unwilling or unable to accept that his conduct had been serious, inappropriate or unreasonable and demonstrated no remorse or recognition of fault. In light of this the Respondent cannot be said to have unreasonably reached the conclusion that any lessor sanction was unlikely to prevent future occurrences of the similarly inappropriate behaviour and in those circumstances I am unable to find that it was outside of the range of reasonable responses to dismiss rather than impose a lesser sanction. Conclusion on Fairness[131]For the reasons set out above, I find that the Claimant was not unfairly dismissed by the Respondent within section 98 of the Employment Rights Act 1996.[132]Nevertheless, I have briefly considered whether, had I reached a different conclusion as regards the procedural fairness, there should be any adjustments to the Claimant’s award. Polkey[133]In accordance with the principles in Polkey -v- AE Dayton Services Ltd [1987] UKHL 8, I must consider whether any adjustments should be made to the compensation element of the Claimant’s award on the grounds that if a fair process had been followed by the Respondent in dealing with the Claimant’s case, the Claimant might have been fairly dismissed, that is, if the procedural and investigative flaws that I have found had not occurred what would be the chance of a fair dismissal?.[134]Even if I had concluded that the Respondent’s failure to respond to the Claimant’s correspondence at times during the disciplinary process or to provide him with representation/accompaniment at the disciplinary hearing (or information as to how he could contact his chosen representative so that he could contact them himself) or any of the other failings alleged by the Claimant had rendered the dismissal procedurally unfair, for the reasons set out above I would have made a 100% reduction in the Claimant’s compensatory award. This would have been on the basis that any unfairness would not have undermined the evidence of the audio recordings and the conclusions reached by the Respondent on the basis of that evidence and accordingly there would have been a 100% likelihood that the Claimant would have been dismissed in any event if a fair procedure had been followed. Contributory Fault[135]The Tribunal may reduce the basic or compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996.[136]Section 122(2) provides: “Where the Tribunal considers that the conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”[137]Section 123(6) provides: “Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[138]In determining whether any deduction should be applied to either part of the Claimant’s award as a result of contributory fault, I must first identify what conduct on the part of the Claimant could give rise to contributory fault. I must then also consider whether any such conduct was culpable, blameworthy or unreasonable and whether the blameworthy conduct caused or contributed to the dismissal to any extent.[139]I identify the Claimant’s conduct in the telephone call to Mr Kamran and in his interaction with Mrs Shoukat as heard on the audio footage as potentially giving rise to contributory fault.[140]I do not find the Claimant’s explanations for those actions to be compelling or exculpatory and consider his conduct as evidenced by the recordings to be culpable, blameworthy and unreasonable for the reasons set out in paragraphs 71-76, 78 and 97 above.[141]Accordingly, I would have found it appropriate, just or equitable to make a deduction from both the Claimant’s basic and compensatory awards on the basis of contributory fault in the amount of 85%. ACAS Adjustment[142]It is clear from the evidence that I heard that the Respondents had in place an appropriate disciplinary policy and followed a process of suspension, investigation, disciplinary hearing and appeal. For reasons more fully set out above, there is therefore no doubt in my mind that there was substantial compliance with the Code by both parties.[143]However, although the Claimant was offered the opportunity to be accompanied or represented at relevant stages through the process the Respondent’s failure to respond to his correspondence requesting assistance with this and/or to ensure the attendance of the person he named effectively deprived the Claimant of the opportunity for representation/accompaniment at the disciplinary hearing on 11th September 2020.[144]I consider that this amounted to a material deviation from the ACAS code in the circumstances of this case.[145]Despite the Claimant initially indicating that he wished to be accompanied/represented, when faced with a lack of such assistance he indicated that he was happy to proceed rather than raising any objection to the hearing proceeding.[146]Nevertheless, had I made an award in relation to unfair dismissal I would therefore have awarded an adjustment to reflect this lack of compliance and would have uplifted the Claimant’s award by 5% for this breach of the ACAS Code. Re-instatement/Re-engagement[147]The Claimant requested re-instatement in the event that his dismissal was found to be unfair. This was resisted by the Respondent.[148]I heard no evidence regarding the availability of a similar job but in light of Mr Sefton’s evidence regarding the advertisement (para 64 above) I am satisfied that it would be practical for the Respondent to comply with such an order[149]However, on the basis of Mr Phelan’s evidence, the Claimant’s lack of insight into his behaviour meant that the Respondent had no confidence that similar behaviour would not occur again if the Claimant remained in post and the Respondent’s trust in the Claimant has clearly been lost. Accordingly, a reasonable future working relationship is unlikely to be possible.[150]Had I found the dismissal to be unfair, for all the reasons set out above, and in all the circumstances of this case, I would not therefore have considered it just, suitable or appropriate to order re-instatement or re-engagement.