[1]The claim for unfair dismissal does not succeed.[2]The claim for wrongful dismissal does not succeed.
REASONS
[3]The following attended in person on behalf of Miss Howe: Mr. Crawford as counsel, Mr. Eckett as instructing solicitor and Miss Howe as claimant and witness. The following attended in person on behalf of the respondent: Mr Baker as counsel and witnesses: Mrs. Clark, Miss Ferguson-Prout, Mr Shirley and Mrs. Allport. All witnesses took the oath or affirmed.[4]The joint bundle of documents totalled 1013 pages. This together with the witness statements was made available by Miss Howe and the respondent respectively to each other in advance of the hearing (in hard copy format). The bundle and the witness statements were provided to the Tribunal for the first time at the hearing (also in hard copy format). Page numbers in these reasons refer to pages in the bundle.[5]I adjourned for 45 minutes to read the witness statements and bundle, having asked Mr Crawford and Mr Baker for suggestions of essential reading in the bundle.[6]There was a list of issues as set out in the case management order from the preliminary hearing for case management on 16 May 2022 (see below) [pages 56-63, with particular reference to pages 61-63].[7]It was agreed that contributory fault was relevant (as per the list of issues). With regard to contributory fault, it was recognised that this meant I would need to make a finding as to whether Miss Howe had committed any of the gross misconduct set out in the allegations, if I were to find the dismissal unfair. This was also relevant to the breach of contract claim (wrongful dismissal).[8]Given that the final hearing had been listed for five days and only four days were available, I discussed with Mr Crawford and Mr Baker how the timetable could be adjusted to ensure completion within four days. It was anticipated that all of the afternoon sessions would be used, which was not the case, and the application made by Mr Baker on 26 April 2023 was not anticipated.[9]On day one (24 April 2023) Mrs. Clark and Miss Ferguson-Prout adopted their witness statement and were respectively cross examined in the morning and the afternoon. I asked a few questions of Mrs. Clark and there was some reexamination. Mr Baker requested that no further respondent’s witnesses be cross examined after Miss Ferguson-Prout since there was not time at 3:15 p.m. to start and complete a witness. On day two (25 April 2023), Mr Shirley adopted his witness statement and was cross-examined. I asked some questions and there was some re-examination. At this point, it was 3:15 PM and Mr Baker stated that he needed to take lengthy instructions and would prefer that the day ended without hearing from Mrs. Allport.[10]At the start of day three (26 April 2023), Mr Baker said that he needed to make an application but before doing so he had been instructed to ask some questions to determine the need for the application. He asked me a number of questions about my career history, having ascertained that I had once worked for the respondent, the dates of my employment, role and whether I had ever undertaken occupational health assessments of cabin crew overseas. I had not mentioned this because I had ceased working for the respondent some 35 years previously in the capacity of Occupational Psychologist in Human Resources allocated to Passenger Services, Ramp, Reservations and Revenue Accounts. Mr Baker then said that he would need to take further instructions in light of this information and he requested an initial period and then a further period. I returned to the hearing room to hear Mr Baker’s application at 11:30 a.m. Mr Baker indicated that he would no longer be pursuing the application.[11]After this, Mrs. Allport adopted her witness statement and was cross examined. Miss Howe then adopted her witness statement, cross examination followed and re-examination. On day four (27 April 2023), both representatives provided written submissions. Closing oral submissions followed. By this stage, it was about 3:00 p.m. and I explained that it would not be possible for me to make my decision and deliver judgement by the end of the afternoon session. I therefore reserved my decision.
The issues
[12]Unfair Dismissal Section 94 Employment Rights Act 1996 (“ERA 1996”)12.1 Was there a potentially fair reason for dismissal? 12.1.1 The respondent relies on the potentially fair reason of conduct (s98(2) ERA 1996). Miss Howe agreed.12.2 If Miss Howe was dismissed for the potentially fair reason of conduct, did the respondent have a reasonable belief in Miss Howe’s guilt?12.3 If so, did the dismissal fall within a band of reasonable responses?12.4 Was the dismissal fair in all the circumstances? (s98(4) ERA 1996)12.5 If Miss Howe was dismissed for a potentially fair reason, but the dismissal was procedurally flawed rendering the dismissal unfair, would Miss Howe have been dismissed in any event? (See Polkey v A E Dayton Services Ltd. [1987] IRLR 503).12.6 Did Miss Howe contribute to her dismissal? Would it be just and equitable to reduce any award because of the conduct of Miss Howe before the dismissal and if so, to what extent?12.7 Did the respondent fail to follow the ACAS guidelines in dismissing Miss Howe and, if so, should any award of compensation awarded by the Tribunal be increased and if so, by how much?12.8 The issues relating to the remedy for unfair dismissal were set out at paragraphs 2.1 to 2.6 of the issues list finalised at the preliminary hearing.[13]Wrongful dismissal/notice pay13.1 What was Miss Howe’s notice period?13.2 Was Miss Howe paid that notice period?13.3 If not, was Miss Howe guilty of gross misconduct and/or did Miss Howe do something so serious that the respondent was entitled to dismiss without notice? Law applicable to the issues in dispute in the Unfair Dismissal Claim[14]S.98 Employment Rights Act 1996 (“ERA 1996”) states:(1) “in determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to showa. the reason or if there is more than one the principal reason for the dismissal andb. that it is either a reason falling within(2) or some other substantial reason of a kind such justify the dismissal of the holding position which the employee held. (2) a reason falls within this subsection if it –….(b) relates to the conduct of the employee,(3) …(4) where the employer has fulfilled the requirements of subsection 1, the determination of the question whether dismissal is fair or unfair (having regard to the reason shown by the employer) – a. depends on whether in the circumstances (including the size administrative resources of the employer’s undertaking) the employer acted reasonably and unreasonably in treating it as a sufficient reason for dismissing the employee and b. shall be determined in accordance with equity and substantial merits of the case”. Misconduct[15]The classic three stage test for a misconduct dismissal is set out in British Home stores Ltd v Burchell [1980] ICR 303 EAT:(a) the respondent genuinely believed that Miss Howe was guilty of misconduct(b) the respondent had in mind reasonable grounds upon which to sustain that belief(c) the respondent carried out as much investigation as was reasonable.[16]The burden of proof is on the respondent to show that it believed Miss Howe was guilty of misconduct. The burden of proof for the remainder of the test is neutral (section 6 of the Employment Act 1980 and Boys and Girls Welfare Society v MacDonald [1996 ] IRLR 129 EAT).[17]Where there are multiple allegations of misconduct, the question for the Tribunal is not whether the acts individually amount to (gross) misconduct, or might be said to cumulatively amount to (gross) misconduct. Rather (per Governing Body of the Beardwood Humanities College v Ham UKEAT/0379/13/MC): 12…. The focus for the Tribunal to the nature and quality claimant’s conduct in totality and impact of such conduct and the sustainability of the employment relationship so the reason for dismissal purposes of section 98 employment rights act is a set of facts known to be put maybe of beliefs held by him, which goes into dismiss the as Cairns LJ famously observed in Abernethy v Mott Hay and Anderson [1974] ICR 662… 16… The question is not whether the individual acts misconduct found by the appeal panel individually or indeed cumulatively amount to gross misconduct. Rather it is whether the conduct in its totality amount to a sufficient reason for dismissal under section 98 (4)”.[18]Generally, misconduct need not be culpable or blameworthy, it may include gross negligence, and there is no need for Miss Howe to have been subjectively aware of the misconduct (JP Morgan Securities plc v Ktorza UKEAT/0311 /16 /JOJ).[19]As the question of whether Miss Howe’s behaviour was gross misconduct:19.1 gross misconduct, describes an act that fundamentally undermines the contract (Wilson v Racher [1974] ICR 428 CA) or is either deliberate wrongdoing or gross negligence (Sandwell & West Birmingham hospitals NHS trust v Westwood UKEAT/0032/09)19.2 more recent authorities, however, have moved away from a purely contractual analysis - that is, was Miss Howe’s conduct repudiatory focussing on the question of “grossness”. The question is: was the conduct such that it was reasonable to dismiss; not did it amount to gross misconduct (Hope v British Medical Association [2022] IRLR 206 EAT)?19.3 a series of acts demonstrating a pattern of conduct of sufficient seriousness could undermine the relationship of trust and confidence such that dismissal would be justified even if the employer is unable to point to any particular act and identify that as gross misconduct. The dismissal would be justified by the conduct which undermined the relationship of trust and confidence – not because the series of acts had added up to gross misconduct as such: Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17.[20]Even if a Tribunal finds that Miss Howe’s misconduct did not amount to gross misconduct, that does not necessarily render the dismissal unfair (per Langstaff J in West v Percy Community Centre UKEAT/0101/15/RN at paragraphs 23-24).[21]In terms of what constitutes gross misconduct, I am aware of the following referred to me by Mr. Crawford.[22]HHJ Eady QC (as she was then) in Burdett v Aviva Employment Services Ltd UKEAT/0439/13/JOJ held: “29. What is meant by “gross misconduct” – a concept in some ways more important in the context of a wrongful dismissal claim – has been considered in a number of cases. Most recently, the Supreme Court in Chhabra v West London Mental Health NHS Trust [2014] ICR 194 reiterated that it should be conduct which would involve a repudiatory breach of contract (that is, conduct undermining the trust and confidence which is inherent in the particular contract of employment such that the employer should no longer be required to retain the employee in his employment, see Wilson v Racher [1974] ICR 428, CA and Neary v Dean of Westminster [1999] IRLR 288 , approved by the Court of Appeal in Dunn v AAH Ltd [2010] IRLR 709, CA ). In Chhabra , it was found that the conduct would need to be so serious as to potentially make any further relationship and trust between the employer and employee impossible. It is common ground before me that the conduct in issue would need to amount to either deliberate wrongdoing or gross negligence (see Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09/LA )”.[23]The characterisation of an act as “gross misconduct” is thus not simply a matter of choice for the employer. Without falling into the substitution mindset warned against by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, it will be for the Employment Tribunal to assess whether the conduct in question was such as to be capable of amounting to gross misconduct (see Eastland Homes Partnership Ltd v Cunningham UKEAT/0272/13/MC per HHJ Hand QC at paragraph 37). Failure to do so can give rise to an error of law: the Employment Tribunal will have failed to determine whether it was within the range of reasonable responses to treat the conduct as sufficient reason for dismissing the employee summarily.[24]The reason for a dismissal will be determined subjectively: what was in the mind of the employer at the time the decision was taken. Whether the dismissal for that reason was fair, however, imports a degree of objectivity, albeit to be tested against the standard of the reasonable employer and allowing that there is a margin of appreciation – a range of reasonable responses – rather than any absolute standard. So if an employer dismisses for a reason characterised as gross misconduct, the Employment Tribunal will need to determine whether there were reasonable grounds for the belief that the employee was indeed guilty of the conduct in question and that such conduct was capable of amounting to gross misconduct (implying an element of culpability on the part of the employee). Assuming reasonable grounds for the belief that the employee committed the act in issue, the Tribunal will thus still need to consider whether there were reasonable grounds for concluding that she had done so wilfully or in a grossly negligent way.[25]Even if the Tribunal has concluded that the employer was entitled to regard an employee as having committed an act of gross misconduct (i.e. a reasonable investigation having been carried out, there were reasonable grounds for that belief), that will not be determinative of the question of fairness. The Tribunal will still need to consider whether it was within the range of reasonable responses to dismiss that employee for that conduct. The answer in most cases might be that it was, but that cannot simply be assumed. The Tribunal's task in this regard was considered by a different division of the EAT (Langstaff P presiding) in Brito-Bapabulle v Ealing NHS Trust UKEAT 0358/12/1406, as follows: “38. The logical jump from gross misconduct to the proposition that dismissal must then inevitably fall within the range of reasonable responses gives no room for considering whether, though the misconduct is gross and dismissal almost inevitable, mitigating factors may be such that dismissal is not reasonable. […]39. […] What is set out at paragraph 13 [“Once gross misconduct is found, dismissal must always fall within the range of reasonable responses …”] is set out as a stark proposition of law. It is an argument of cause and consequence which admits of no exception. It rather suggests that gross misconduct, often a contractual test, is determinative of the question whether a dismissal is unfair, which is not a contractual test but is dependent upon the separate consideration which is called for under s.98 of the Employment Rights Act 1996 .40. It is not sufficient to point to the fact that the employer considered the mitigation and rejected it […], because a tribunal cannot abdicate its function to that of the employer. It is the Tribunal's task to assess whether the employer's behaviour is reasonable or unreasonable having regard to the reason for dismissal. It is the whole of the circumstances that it must consider with regard to equity and the substantial merits of the case. But this general assessment necessarily includes a consideration of those matters that might mitigate. […]”[26]In terms of fairness a Tribunal must consider whether(i) the procedure and investigation and(ii) the decision to dismiss fell within the range of reasonable responses. In J Sainsburys v Hitt [2003] I.C.R., the Court of Appeal clarified that the scope of the reasonable responses test permeates every aspect of the dismissal. The objective standard of the reasonable employer should be applied as to what was a reasonable investigation. The Tribunal should ask itself whether the investigation into the suspected misconduct was reasonable in all the circumstances.[27]The EAT set out the “correct approach” considering the reasonableness of a dismissal in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 EAT at 24-25, specifically:27.1 The starting point is the words of section 98(4) ERA 1996.27.2 The tribunal must consider the reasonableness of the respondent’s conduct, not whether the Tribunal considered a dismissal fair.27.3 When judging reasonableness, the Tribunal must not substitute his own views as to what was the right course to adopt.27.4 There is a range of reasonable responses within which decisions fall: that one employer might have made a different decision does not render the respondent’s decision unfair.27.5 The task before the Tribunal is to determine whether the respondent’s decision to dismiss fell within that band. If it did, the dismissal was fair.[28]As to the investigation, the Tribunal must assess the reasonableness of what the respondent did do, not what it did not do. Assessment of the scope and nature of the investigation, like all other matters is a question of reasonableness. Findings of fact on credibility and liability[29]I make my findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral which was admitted at the hearing. I do not set out in this judgment all of the evidence which I heard but only my principal findings of fact, those necessary to enable me to reach conclusions on the remaining issues. Where it was necessary to resolve conflicting factual accounts, I have done so by making a judgment about the credibility or otherwise of the witnesses I have heard based on their overall consistency and the consistency of accounts given on different occasions when set against contemporaneous documents where they exist.
Background
[30]The respondent is a global airline in the sector of air transportation services, offering scheduled air services for passengers and freights, as well as aircraft financing, maintenance, holiday packages and insurance.[31]Miss Howe commenced employment with the respondent on 22 June 1986 as what was then known as “Stewardess” but more recently as “Cabin Crew and Purser” in Long Haul with Inflight Customer Experience. Her position of purser was a supervisory position, in charge of a cabin. She was dismissed on 27 May 2021 for gross misconduct. Chronology of key events[32]On 25 January 2021, Miss Howe was taken ill on the flight to New York [page 846]. She was taken off the flight by an ambulance to the terminal at John F. Kennedy (“JFK”) Airport and examined by a U.S. doctor. She was then taken by ambulance to the nearest hospital, the Jamaica Medical Centre. Initially, it was suspected that Miss Howe had had a stroke but subsequently it was considered that she had COVID-19. The Jamaica Medical Centre (“the hospital”) was largely dedicated to the care of COVID-19 patients. 5 of its 6 floors were COVID-19 wards. At the time of admission, it was still not clear whether Miss Howe had had a stroke or experienced some other very serious medical incident and for this reason she underwent a number of tests, including a MRI scan of her brain.[33]Miss Howe was first put in a room with an elderly woman who died during the night of the 25 January 2021/early morning 26 January 2021. Miss Howe was moved to a private room where she was told that another patient had very recently died.[34]Miss Howe observed as she entered the hospital that one individual had been stabbed with the knife still embedded whilst another had suffered a drug overdose. The temperature in the hospital was variable and was very hot in Miss Howe’s first room, her bed being next to the radiator. In her view, the food was very limited and rather inedible.[35]Miss Howe had a meeting with a doctor wearing personal protective equipment (“PPE”) who explained her MRI brain scan to her.[36]On 25 and 26 January 2021, Miss Howe had many phone conversations with various Cabin Crew Duty Managers who called her repeatedly to find out what was happening.[37]On 26 January 2021, Miss Howe’s discharge took place. I do not refer here to my findings of fact about whether she discharged herself or was discharged. She left the hospital and went to Walgreens, where she brought water and some basic food. She was transferred to the T.W.A. Crew Hotel by taxi.[38]Miss Howe stayed in the hotel until she was cleared for a flight home on 3 February 2021. During her hotel stay, she was visited by a doctor on behalf of Global Lifeline (a service provider to the respondent).[39]On 23 February 2021, Miss Howe met with Miss Ferguson-Prout in a preinvestigation hearing to enable Miss Ferguson-Prout to decide whether to recommend an investigation.[40]On 4 March 2021 [page 267], Miss Howe was invited to intend an investigatory meeting with Mr. Cannon on 11 March 2021 [page 271]. In the interim, Mr. Cannon emailed the appellant and a number Cabin Crew Duty Managers and Airport Managers at JFK Airport, with questions, requesting answers by email.[41]On 14 April 2021 following the investigation interview, Mr. Cannon informed Miss Howe that she had a case to answer [page 350].[42]On 16 April 2021, Miss Howe was invited to a disciplinary hearing [page 352]. On 28 April 2021 the disciplinary hearing took place with Mr. Shirley [page 360]. On 27 May 2021, Mr. Shirley informed Miss Howe that she would be summarily dismissed [page 401].[43]On 1 June 2021 Miss Howe appealed the dismissal [page 417]. On 16 June 2021, the appeal hearing took place with Mrs. Allport [page 454]. On 25 June 2021, Mrs. Allport dismissed the appeal [page 479].[44]On 27 July 2021, a second appeal hearing took place with Mr. Rickwood [page 215].[45]On 2 August 2021, Miss Howe commenced the A.C.A.S. Early Conciliation Process [page 1].[46]On 3 August 2021 Mr. Rickwood dismissed the second appeal [page 561].[47]On 3 September 2021, Miss Howe presented her claim [page 2 - 23]. The allegations[48]The disciplinary hearing was concerned with 6 allegations as investigated by Mr. Cannon [pages 267 – 268]. Although there were 6 allegations, there was some duplication and certain allegations gave rise to more than one charge of misconduct:[49]Alleged racist comments which related to both EG101 and E102, policies concerned with Dignity at work – Diversity and Inclusion and Dignity at work – Harassment and Bullying [pages 86 – 92 and 93 – 97]. The alleged racist comments also related to the offence ‘conduct prejudicial to British Airways’. The two alleged racist comments were as follows:49.1 Making the comment “I do not want to be in a hospital where the doctors speak with a West Indian accent”.49.2 Making the comment: “I have been put in a room with an AfroCaribbean lady and the room is too hot”.[50]Leaving the hospital and going to Walgreens which related to two offences – breach of British Airways COVID Procedures (OMB2.3.5) [pages 131 - 144] and a failure to comply with Overseas COVID Procedures (down route health precautions) (OMB 6.0.3) [pages 145-150].[51]Comments to Cabin Crew Duty Managers and to Global Lifeline relating to the offence of making abusive, rude or offensive behaviour towards a colleague and/or service partner. Witnesses[52]My impression of the witnesses was as follows. Mrs. Clark, Duty Cabin Crew Management[53]I find that the majority of Mrs. Clark’s recollection was based on the notes which she had made in the log used by Duty Cabin Crew Management and which she had transferred to the Crew History Report (which was also referred to as the Crew Service History during the hearing). In other words, her memories were based on the Crew History Report. Her first-hand experience of the allegations concerned:53.1 The comment about the doctor and a West Indian accent53.2 The comment about the elderly Afro-Caribbean patient and the temperature in their hospital room.53.3 Abusive, rude or offensive comments made to her.[54]Mrs. Clark’s entries in the Crew History Report about Miss Howe started at [page 844] with her initial at the end. It began “to paraphrase a little, she stated “what use was tea and sympathy conversation with an IBM she wanted someone who could make decisions. She expected 6 star treatment when down-route and sick, she is going through hell as she’s been placed in an NHS style hospital, she only deals in private when it comes to healthcare. She has asked for bottled water, rice cakes, fresh fruit, cheese, lip balm, toothpaste and UK size 10 pyjamas….”[55]Below that was another entry starting with “Alexandra called again. To cut a long story short after x 4 very long calls where AH made several demands, wouldn’t let me speak and continually repeated these demands inc. 6 star treatment – and the fact it is BA’s fault she has covid- she is proving very difficult to speak to. She has made comments “I want to be in a hospital where the Drs don’t speak with a West Indian accent” and “I’ve been put in a room with an Afro-Caribbean woman the room is too hot”. I have had to pass this to Fm on call Daniel Godbold. GLL have stated that medically she has been provided with everything she requires, medically she has been given everything she needs. GLL say her perceptions of what she needs differ from what she actually needs to recover. She has asked for 7 star quarantine facility and private room in private hospital etc. HC”.[56]“To paraphrase a little” and “to cut a long story short” indicate several things:56.1 That Miss Howe said a lot which was not noted by Mrs. Clark;56.2 A sense of antipathy towards Miss Howe.[57]The initial indicated that Mrs. Clark had transposed her own entries from the Duty Cabin Crew Management Log. The entries on subsequent pages [page 847 - 849] had underneath them “note taken by Helen Clark”, but the typed entry was initialled by someone else. The Tribunal was not shown the Duty Cabin Crew Management Log for the period since it contained entries about other staff during the shift and it would have been very long.[58]Mrs. Clark was consistent in maintaining throughout that Miss Howe had said nothing about being unable to understand the doctor’s medical explanation to her. Mrs. Clark was not able to explain why she had not answered the questions of the investigating officer, Mr. Cannon, in full as to whether Miss Howe had referred to the doctor wearing PPE – two masks and a visor. Mrs. Clark was also not able to confirm whether Miss Howe’s comment referred to one or several doctors when Mr. Cannon had written doctor with an s at the end (“doctor’s”). Miss Ferguson-Prout, Initial Investigating Officer[59]First, Miss Ferguson-Prout hesitated sometimes when asked about statements made in her witness statement. Secondly, Miss Ferguson-Prout made judgmental references in her witness statement to Miss Howe:59.1 “…as if a celebrity..” [paragraph 14]59.2 Felt like Miss Howe was having a rant” [paragraph 15]59.3 “little understanding or empathy…” [paragraph 16].[60]Miss Ferguson-Prout admitted that there was no (evidential) support for these judgmental comments made in her witness statement; they were not borne out by her interview with Miss Howe. Miss Ferguson-Prout stated that she had not shared her view with Mr. Cannon nor recorded it. She denied that this had affected her view of Miss Howe.[61]I find it more likely than not that her negative view of Miss Howe as expressed in the witness statement was likely to have had some effect even if subconsciously, on her assessment of Miss Howe. For example, she did not consider the questions raised by Miss Howe about the lack of consistency of the evidence of Duty Cabin Crew Management (e.g. Mrs. Clark and Ms. Slark). Mr. Shirley, Dismissing Officer[62]Mr. Shirley’s oral evidence was relatively straightforward.[63]He admitted that Miss Howe had explained to him the context in which she had made a comment about the West Indian accent of the doctor. He accepted that Miss Howe had a hearing impairment due to COVID-19 which made it difficult for her to hear the doctor’s medical explanation of her diagnosis. In addition, he accepted that the PPE worn by the doctor made it difficult to understand the doctor’s medical explanation and he accepted that Miss Howe was frightened, another factor put forward by Miss Howe making it difficult to understand the doctor’s medical explanation.[64]At some point in Mr. Shirley’s evidence, Mr. Baker interrupted and said that Mr. Shirley had not said that he accepted that these explanations applied. Instead, Mr. Baker said that all that Mr. Shirley was doing was accepting that Miss Howe had stated these things to him and put them forward as explanations of why she had difficulty in understanding the doctor’s medical explanation.[65]I discussed the oral evidence with Mr. Baker and read back a number of answers from my contemporaneous notes given by Mr. Shirley in which he had said ‘I accept that’. I find that the plain meaning of his answers was that he accepted that these were true.[66]Mr. Shirley continued under cross examination and towards the end of his oral evidence, there was another interruption by Mr. Baker. Mr. Baker said that the question put to Mr. Shirley in cross examination repeatedly had been whether he had accepted that Miss Howe had given that account but not whether he accepted it as true. I explained to Mr. Baker that the meaning of ‘accept’ in this context of cross examination is usually “I accept this as true”. Later, I asked Mr. Shirley to clarify what he accepted as true or correct. I went over what he had said (but not everything - only a selection) and asked him whether he had meant “I accept that it was said by Miss Howe or I believed or I accepted as true that …” Mr. Shirley confirmed that he had accepted (as true) that the following factors had made it difficult to understand the doctor’s medical explanation of the MRI brain scan and therefore diagnosis – hearing impairment, PPE, the noise of the machines in the hospital, being frightened and being unwell from COVID-19. Mrs. Allport, Appeal Officer[67]Mrs. Allport answered a number of questions with approximately the same answer; that this was a review not a rehearing. She quite often repeated sentences or phrases from her witness statement. This had the effect of Mrs. Allport’s not answering a significant number of questions. Miss Howe[68]Miss Howe was consistent throughout her oral evidence with her witness statement and her answers in the interview with Miss Ferguson-Prout, in the email correspondence with Mr. Cannon (the investigating officer) and in the hearings with Mr. Shirley and Mrs. Allport. Although Mr. Baker told Miss Howe that she had changed her account from doctors to doctor in the comment concerned with a West Indian accent, I find that Mrs. Clark accepted in answering questions about the email from and to Mr. Cannon that she could not be sure whether the comment was” doctor” or “doctors”.[69]Miss Howe explained the full context of what was said concerning her comment about the West Indian accent and about the Afro-Caribbean lady in the hospital. The full contexts given were plausible and matched what Mr. Shirley understood her to have said.[70]She explained why talking to the doctor via zoom allowed her to understand his medical explanation – because he was able to remove his PPE which had been a barrier. Mr. Shirley had accepted in the disciplinary hearing that Miss Howe had used zoom to resolve the problem. It makes sense that Miss Howe had been referring to one doctor all along because only one doctor gave her the analysis of her MRI brain scan and her resulting diagnosis.[71]Miss Howe gave clear explanations why she could not be overheard when speaking about the elderly Afro-Caribbean patient – she was in a corridor with background noise in a chaotic hospital and had taken care not to be overheard. I recall that Mr. Baker accused Miss Howe of not telling the truth because she had told the hearing that she was in a corridor when speaking to Mrs. Clark whilst her written account stated that she was under the blanket on her bed. I find that Duty Cabin Crew Management (and in this context, Mrs. Clark) made many calls to the appellant, and I do not find it significant that Miss Howe was in different locations when speaking to Mrs. Clark over several conversations.[72]The context given for explaining the comment about the Afro-Caribbean lady was also plausible. She explained that it was relevant to include the ethnic origin of the patient to explain why she needed more warmth in the room in the context of her making arrangements to give this patient a better temperature and to make her comfortable. Miss Howe also said that she would not have referred to the patient as “an Afro-Caribbean lady”. She would have used the word “woman”.[73]Miss Howe was extremely honest. She admitted (to Mr. Shirley and the Tribunal) that:73.1 she had made comments to the Cabin Crew Duty Management Team and to Global Lifeline which were abusive, rude or offensive.73.2 she did not consider the alleged racist comments in the context in which she had made them to be racist (see paragraphs 110.3 and 115.5 below).[74]Towards the end of cross-examination, she said very frankly: “My comments would most certainly have across as being racist but you need to look at the full sentence and context”… “If somebody … is making racist comments they should not be working as an international cabin crew member”.[75]Miss Howe gave a graphic description of what she felt when unwell which was consistent with the accounts given to Mr. Shirley. Her account that the Crew History Report did not record everything she said was consistent with the problems identified with the Crew History Report under cross examination (see below).[76]Having made these general observations, I find the evidence of Miss Howe to be more credible than that of the respondent’s witnesses for all the reasons set out above. Where there is a dispute on the facts, I have therefore relied on the evidence of Miss Howe in preference to that of the respondent’s witnesses. Cabin Crew History Report[77]There were two Duty Cabin Crew Managers on each shift. They received many telephone calls and emails during their shift. They made a rapid note in the Duty Cabin Crew Management Log identifying the range of problems encountered and any solutions. Generally, the identity of the note taker was recorded. At the same time or at any subsequent time, the same or a different Duty Cabin Crew Manager would copy an entry from the Duty Cabin Crew Management Log and paste it into the Crew History Report. The Crew History Report is the individual equivalent of the personal file recording anything considered to be relevant about the employee. Generally, the person copying the notes will put their initial or name down to show who copied it across. The identity of the copier of the note need not be the same as the author of the note in the Cabin Crew Duty Management Log.[78]As a result of answers to cross examination about the Crew History Report by the respondent’s witnesses, and in particular by Mrs. Clark, I find that the Crew History Report was a little disorganised because it was not chronological, although some of it was copied across contemporaneously. Mrs. Clark said she had copied the (alleged racist) comments across from the Duty Cabin Crew Management log into the Crew History Report immediately. Given that Mrs. Clark admitted under cross examination that she could not remember who was on duty with her that shift, it is somewhat surprising that she can be so sure about this. Timings also could be confusing because the Crew History Report gives times in different time zones (U.K. and U.S.) without specifying which is which. An example of the confusing chronology was an entry that Miss Howe had left the hospital and was in the hotel, having called paramedics to look at her room. Following that are entries concerned with Miss Howe in the hospital [page 847].[79]I note that entries copied across by Ms. Slack into the Crew History Report were confusing about the chronology of events; whether Miss Howe had been told not to organise transport herself or told to do so via the Social Worker, whether the Social Worker in hospital had been approached to ask them to organise transport and when, and whether Miss Howe had discharged herself or was discharged and the timing of that discharge.[80]This is supported by the email from Steven Manswell, JFK Airport Operations Manager to Mr. Cannon [pages 340 - 342]. Mr. Cannon considered that Mr. Manswell might have been involved in all of those points, but he denied involvement. This is important because the Crew History Report sets out an account of instructions, as if these were clearly given to Miss Howe. Miss Ferguson-Prout admitted that she could not say when Miss Howe would have gone to Walgreens or for how long she had waited outside the hospital before going to Walgreens. It is a critical part of Miss Howe’s evidence that it was only after she had waited some 2 hours outside in very cold temperatures that she had to go to the supermarket to buy herself some water to enable her to take her medicine and some food.[81]Miss Ferguson-Prout in cross examination admitted that it was possible that Miss Howe had approached the Social Worker who had told Miss Howe that the Social Worker would not arrange transport. Miss Ferguson-Prout accepted that it was possible that Miss Howe had been told by the Social Worker to leave the hospital. She agreed that it was possible that Miss Howe was not welcome in the lobby of the hospital because she had COVID-19 and so had been made to go outside. She further accepted that it was possible that Miss Howe had been waiting for 4 hours outside in the cold. Mrs Ferguson-Prout repeatedly said that the hospital must have had water to offer Miss Howe, but she could point to no evidence that Miss Howe would have been admitted back into the hospital to get this water.[82]Taking all these flaws together, I find that the Crew History Report was at times unreliable (concerning the incidents around leaving the hospital) and a truncated version of what had been said at the time by Miss Howe (concerning the alleged racist comments). In other words, I accept Miss Howe’s evidence that she gave a full account with her reasons for her comments and behaviour and the Crew History Report gives only a brief extract. It is also plausible that only some of what an individual said would have been recorded because Duty Cabin Crew Managers were extremely busy, especially during COVID-19 with additional compliance procedures, and it is likely that the most contentious or controversial words would have stuck in the memory and be noted down devoid of their full explanatory context.[83]I return to discussion about the Crew History Report in the section on the investigation. Was there a dismissal?[84]It is not disputed that there was a dismissal. Was it for a potentially fair reason?[85]It is not in dispute that the reason for the dismissal was conduct. Fairness of the Procedures[86]Miss Howe did not raise any point about unfairness of procedure. This was confirmed in Mr. Crawford’s closing submissions. For the sake of completeness, I find that there was no procedural unfairness because:86.1 The investigation, disciplinary hearing and appeal complied with the ACAS code of practice.86.2 Miss Howe was sent letters informing her of what was happening and why at each stage. This included the letter setting out the rationale for an investigation, the possible grounds of misconduct to be investigated, an invitation to the investigation meeting and an invitation to the disciplinary hearing again setting out the grounds of misconduct being considered. Both invitations referred to the right to be accompanied. In sum, the letters contained what would be expected to enable Miss Howe to prepare and generally to achieve fairness.86.3 Miss Howe was accompanied by her union representative to each meeting, as requested. Did the respondent undertake a reasonable investigation?[87]I accept that Mr. Cannon put detailed written questions to all the people who could be thought to have been involved and carried out an extensive hearing with Miss Howe.[88]The investigation relied on the memories of managers which in turn relied on the Crew History Report as an aide memoire.[89]As stated above, these were some flaws with the Crew History Report with regard to the incidents around leaving the hospital and the alleged racist comments. Given the Crew History Report’s unreliability in these respects, this meant that questions asked of key players (Mrs. Clark and Ms. Slark) to explain what they meant by various entries were unlikely to give a full and accurate picture of what had happened.[90]In addition, there was little challenge by Mr. Cannon to anything said by a Duty Cabin Crew Manager or Management but instead, any records in the Crew History Report were treated as an accurate reflection of events at the time and formed the foundation from which any further questions were asked.[91]I find however that it was open to a reasonable employer to find the Crew History Report reliable because:91.1 It was essentially a contemporaneous record, made during the same shift, although occasionally transferred during the following shift.91.2 The records in the Duty Cabin Crew Management Log of the two alleged racist comments were written by the manager who copied them across into the Crew History Report (Mrs. Clark).91.3 It was unrealistic to expect a perfect record of events in the fastmoving and extremely busy environment in which Duty Cabin Crew Management had to operate.[92]I find that it was open to a reasonable employer to conduct the investigation process in the way that it did because:92.1 It was legitimate to use the Crew History Report as a starting point.92.2 it was thorough seeking answers from all relevant personnel about the Crew History Report entries and cross-referring these to any contemporaneous emails.92.3 Conclusions were logical.[93]For these reasons, I find that the investigation was within the range of reasonable responses. Did the respondent have a genuine belief in Miss Howe’s guilt?[94]The respondent had a genuine belief in Miss Howe’s guilt because this was based on a reasonable investigation. Was the decision to dismiss within the range of reasonable responses? Breach of BA and overseas COVID procedures[95]Miss Howe admitted to Mr. Shirley that she had gone outside the hospital and to Walgreens. Given that Miss Howe was still within the period during which she was required to self-isolate, it was within the range of reasonable responses for the respondent to conclude that she had breached these procedures by these actions and this misconduct was proved.[96]Having regard to the law stated above, I asked myself the following questions with regard to each allegation:96.1 whether the conduct was such as to be capable of amounting to gross misconduct?96.2 Was this one of a series of acts demonstrating a pattern of conduct of sufficient seriousness which could undermine the relationship of trust and confidence such that dismissal would be justified even if the respondent were unable to point to any particular act and identify that as gross misconduct?[97]In this section, it is relevant to answer the question at96.1 and leave96.2 once I have made findings on all the allegations.[98]I find that it was within the range of reasonable responses for the respondent to conclude that these breaches were gross misconduct because:98.1 It was critical to the safe operation of the respondent’s business that COVID-19 procedures were followed strictly.98.2 Miss Howe had volunteered to work during the pandemic rather than be furloughed and by doing so, had agreed to adhere to COVID-19 procedures.[99]It was however not within the range of reasonable responses to dismiss summarily/dismiss for these breaches because:99.1 given the conflicting accounts and uncertainties of what happened in the hospital concerning discharge, the Social Worker and transport arrangements, no reasonable employer could have accurately identified whether and to what extent Miss Howe had deliberately breached these procedures.99.2 Her mitigation was not taken account of: that she might have been on the pavement for hours in the cold and desperate for water (to take her medication) and food through no fault of her own. Abusive, rude or offensive behaviour towards a colleague and/or a service partner[100]Miss Howe admitted this to Mr. Shirley (towards colleagues and Global Lifeline, a service partner) and she repeated this admission in her oral evidence.[101]It was therefore open to a reasonable employer to find that this allegation was proved.[102]It was open to a reasonable employer to find that these comments were conduct capable of amounting to gross misconduct because:102.1 The respondent is in a business in which a reputation for very good customer service is essential102.2 Any abusive, rude or offensive behaviour by an employee, particularly one in front line work such as Cabin Crew could damage this reputation.[103]As mitigation, Miss Howe offered her long service record and the circumstances in which she found herself in New York.[104]Miss Howe had no previous involvement in disciplinary proceedings and had a long and good employment record. I accept that at the appeal hearing, Mrs. Allport had examined the Crew History Report and found three entries which she considered undermined this. Mrs. Allport accepted in cross examination that there was no evidence that any of these three allegations had ever been put to Miss Howe or taken further in any sense. Miss Howe had never had the opportunity to put her side of the story. Mr. Shirley did not make any reference to these and acted on the basis that Miss Howe had an unblemished record.[105]With regard to the circumstances, Mr. Shirley accepted that Miss Howe was feeling very unwell in an environment (the hospital and subsequently, the hotel) that she was not used to in physical conditions that were unsettling and had behaved out of character, not intending to cause upset. Miss Howe told Mr. Shirley that the hospital and hotel were very far below the standard to which Miss Howe as British Airways Cabin Crew was used to.[106]It was however not within the range of reasonable responses to dismiss summarily/dismiss for this breach:106.1 taking account of Miss Howe’s long and unblemished record and106.2 the challenging circumstances in which she found herself – isolated abroad during the pandemic and feeling very unwell. Alleged racist comment involving “Afro-Caribbean” patient[107]Miss Howe admitted to Mr. Shirley that she had made this comment. Although her case was that much more had been said, she admitted that the comment referred both to the temperature of the room and the ethnic origin of the patient with whom she shared that room. It was therefore open to a reasonable employer to find that this allegation was proved.[108]It was open to a reasonable employer to find that this comment was conduct capable of amounting to gross misconduct because it characterised an individual in terms of her ethnic origin and the juxtaposition of the reference to temperature with ethnic origin gave the impression of stereotyping.[109]Mr. Shirley heard that Miss Howe had concerns about the welfare of this patient and had attempted to alleviate how cold she felt by swopping her own bed next to the radiator and by giving this patient her own blanket. Her case to Mr. Shirley was that the reference to the temperature of the room and the patient’s ethnic origin were connected but only through an empathy for this patient and an understanding of how her body fared particularly badly in cold temperatures and would have benefited from experiencing the heat around Miss Howe’s bed.[110]Despite this mitigation, it was within the range of reasonable responses to dismiss summarily for this comment because:110.1 Even though Miss Howe had explained well why she had referenced the patient’s ethnic origins in the context of trying to care for her;110.2 The words “Afro-Caribbean” had been used. Miss Howe could have expressed her concerns about the temperature and for the patient without needing to use these words.110.3 Miss Howe admitted to Mr. Shirley that she did not understand why it had been wrong to make this comment, although she understood that the respondent found it wrong and she would not do it again because of the consequences to her. Such words, though extremely frank, would not set an employer’s mind at rest that during stressful circumstances, there might not be a repetition. Alleged racist comment about doctor(s) and a West Indian accent[111]Miss Howe admitted to Mr. Shirley that she had made the comment (with reference to one doctor): “I do not want to be in a hospital where the doctor(s) speak with a West Indian accent”.[112]It was therefore open to a reasonable employer to find that this allegation was proved.[113]It was open to a reasonable employer to find that this comment was conduct capable of amounting to gross misconduct because:113.1 it characterised an individual in terms of his ethnic origin.113.2 it gave the impression of stereotyping.113.3 the connotations in the sentence were negative.[114]Mr. Shirley admitted that Miss Howe had explained to him why she had made the comment and offered mitigation. This was in the context of being very alarmed about her possible diagnosis, having had the scare of a suspected stroke and her failure to understand the doctor’s explanation of what her MRI brain scan meant, being worried that the yellow dot on the scan might mean a tumour or some other extremely serious medical condition. She had therefore set out the factors making it difficult to hear and understand the doctor: his accent, coupled with his wearing of PPE (two masks and a visor), the noise of the machines and her feeling very unwell. Mr. Shirley confirmed to the Tribunal that he had accepted that these factors applied.[115]Despite this mitigation, it was within the range of reasonable responses to dismiss summarily for this comment because:115.1 Even though Miss Howe had explained well why she had referenced the doctor’s ethnic origins in the context of not understanding his medical explanation;115.2 The words “West Indian (accent)” had been used.115.3 Miss Howe could have expressed her concerns in other ways, which would have avoided any reference to ethnic origin. For example, “I did not understand the doctor because of his accent” or “I would like to be in a hospital where I can understand the doctors” [see paragraph 14 of respondent’s closing note].115.4 In the context of a very large international airline dealing with many different ethnic minorities as customers, staff and contractors and with a need to establish and maintain a good reputation in customer service, use of any racist language could be highly damaging.115.5 Miss Howe admitted to Mr. Shirley that she did not understand why it had been wrong to make this comment, although she understood that the respondent found it wrong and she would not do it again because of the consequences to her. Such words, though extremely frank, would not set an employer’s mind at rest that during stressful circumstances, there might not be a repetition. Pattern of conduct and mitigation[116]The respondent’s case is that the allegations related to a series of acts demonstrating a pattern of conduct of sufficient seriousness which undermined the relationship of trust and confidence such that summary dismissal was justified.[117]When asked, Mr. Shirley told the Tribunal what was in his mind when he decided to dismiss summarily.[118]First, he considered that summary dismissal would have been justified by the racist comments alone. In any event, he considered the allegations as a whole.[119]Secondly, he rejected the mitigation based on the side effects of melatonin.[120]Thirdly, he took account of all the other explanations for Miss Howe’s conduct, whether labelled as mitigation or not.[121]With regards to the behaviour to a service partner, in over 20 years as a hearing manager, he had never come across Global Lifeline refuse to treat someone because of the way in which an employee had spoken to them.[122]Miss Howe had volunteered to work during the pandemic instead of being furloughed and should have understood the need for compliance with COVID19 procedures, especially as she was a vaccinator. The side effects of melatonin[123]Miss Howe had suggested that some of her behaviour was due to the side effects of melatonin, hallucinations and psychotic symptoms. Mr. Shirley quite properly asked for the views of the respondent’s Occupational Health Physician (Dr. Stephen Houston) to understand the potential side-effects of melatonin. Dr. Houston told Mr. Shirley that these were not accepted sideeffects. It was within the range of reasonable responses therefore for Mr. Shirley to reject this as mitigation, relying on a professional opinion. Apologies[124]When asked what might have persuaded him in considering mitigation to opt for a lesser sanction, he said that a genuine apology showing remorse. He clarified that Miss Howe would have had to write to all those whom she had offended and apologise for the offences of which she had been accused and before she was informed of the pre-investigation. In his view, she had failed to make any apologies in writing and definitely not before the start of the preinvestigation.[125]I find that with regards to all of the alleged offences, it was not within the range of reasonable responses if Miss Howe had offered apologies: 125.1 to consider that no genuine apology had been made because it had not made in the form that Mr. Shirley considered valid.[126]Miss Howe admitted to Mr. Shirley and to the Tribunal that she had made no apology to anyone. Pattern of conduct[127]I find that it was within the range of reasonable responses to conclude that there had been a series of acts demonstrating a pattern of conduct of sufficient seriousness which had undermined the relationship of trust and confidence such that summary dismissal was justified because:127.1 Each conduct in each allegation had been proved [paragraphs 95, 100 – 101, 107 and 111 – 112].127.2 Cumulatively, they were sufficiently serious in terms of the ramifications to the respondent of each.127.3 Timely apologies to all involved would have been accepted as mitigation reducing the sanction from summary dismissal but no apology to anyone had been made. Apologies would have carried such weight because they would have reassured the respondent that there would not be any repetition of any of this conduct in future very stressful circumstances.[128]The respondent acted reasonably in treating the two racist comments [paragraphs 107 – 110, 111 - 115 and 118], or alternatively this pattern of conduct, as sufficient reason for summarily dismissing her. Summary of Conclusions on Unfair Dismissal Claim[129]The dismissal was fair in all the circumstances. In making this decision, I have taken all of the above into account, the important role of Cabin Crew in projecting the respondent’s image and the degree to which the respondent’s reputation and therefore business could have been affected by either the racist comments or this pattern of conduct by a member of Cabin Crew. Wrongful Dismissal[130]Miss Howe through her comments about the accent of the doctor and the ethnic origin of her fellow patient, was guilty of gross misconduct.[131]This amounted to a repudiatory breach of her contract such that it entitled the respondent to dismiss her without paying notice. I confirm that this is my Reserved Judgment with reasons in Howe v British Airways Plc No: 3315889/2021 and that I have approved the Judgment for promulgation.
Background
[1]The judgment is confirmed in respect of the complaint of unfair dismissal. The claim for unfair dismissal does not succeed.[2]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, provides as follows: “70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (‘the original decision’) may be confirmed, varied or revoked. If it is revoked it may be taken again. 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72.(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. 72.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.” Background – chronology of the case[3]A liability hearing took place on 24 – 27 April 2024. The reserved judgment was promulgated on 22 June 2023. The application for reconsideration - overview[4]An application for reconsideration was made by the claimant, which was the subject of directions and then listed for a hearing on 26 April 2024.[5]The documents available to me at the hearing were:5.1 The joint bundle of documents for the reconsideration hearing - 42 pages. This consisted of the claimant’s application, submission and the respondent’s response and submission.5.2 The respondent’s skeleton argument for the reconsideration hearing was made available in advance of the hearing to the claimant, and at the start of the hearing to the tribunal.5.3 I was most helpfully referred to the cases of Omooba v Global Artists & Anor [2024] EAT 30 and Mirab v Mentor Graphics UK Limited UKEAT/0172/12/DA and in particular paragraphs 51 – 54 (respectively by Mr. Baker and Mr. Crawford).5.4 The original hearing bundle and witness statements were also before the parties and the tribunal. Page numbers in these reasons refer to pages in the bundles prefaced with RB [reconsideration bundle] and HB [original hearing bundle]. The application for reconsideration - detail[6]On 5 July 2023, the claimant made an application for reconsideration [RB 25 – 28].[7]In my judgment at §86, I wrote: “the claimant did not raise any point re unfairness of procedure”.[8]This was the basis for seeking a reconsideration. The application explained: “It is submitted that the conclusion that no points were raised about the unfairness of the procedure is an error since the claimant by way of crossexamination of the appeals officer Mrs. Allport, and in closing submissions asserted that Mrs. Allport was “abject in her dereliction of duty“ in fulfilling what would amount to a fair appeal of the decision to dismiss”.[9]Mrs. Allport conducted the first of two appeal hearings [record at HB 464-476] and produced an outcome of appeal letter [HB 479-488]. Mr. Rickwood conducted the second appeal hearing called “the final stage appeal” [record at HB 547-558] and also produced an outcome of appeal letter [HB 561-575] but took no part in the hearing in April 2023 (either in the form of a witness statement or as a witness), having left the employment of the respondent.[10]On 2 August 2023, the respondent lodged an objection [RB 30] and submissions [RB 31 – 35].[11]I made direction 3 in a number of directions, stating the reason why as follows: “Upon the written submissions not dealing with all relevant matters in sufficient detail and in particular in relation to the second appeal, And upon a reconsideration determination under Rule 72(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 therefore not being feasible on the papers, And upon it consequently being in the interests of justice for there to be a hearing under Rule 72(2)”, Direction 3: “At the reconsideration hearing, the judgment may be confirmed, varied or revoked. If it is revoked, the re-hearing of the case will follow immediately, and both parties should come prepared to call their evidence and present their case”.
The hearing
[12]The following attended in person on behalf of Miss Howe: Mr. Crawford as counsel and Miss Howe as claimant. The following attended in person on behalf of the respondent: Mr. Baker as counsel and his instructing solicitor, Miss Chowdhury.[13]I explained at the outset that the hearing would be divided into two stages:13.1 stage 1 submissions from the claimant and respondent as to why respectively it was or was not in the interests of justice to reconsider the decision. There would be a break in order to make a decision after which there would be delivery of an oral judgement.13.2 stage 2 If I decided that it was necessary in the interests of justice to reconsider the decision, only then would submissions follow on whether the decision should be confirmed, varied or revoked. This would include identifying what new findings, if any, should be made and submissions should cover how the decision might be taken again or not.[14]My judgment after stage 1 was that it was necessary in the interests of justice to reconsider the decision. As this part of the decision was not reserved and Mr. Baker made it clear at the end of the hearing that he would not be seeking written reasons at any time, I do not give my reasons here as to why I decided that I would reconsider the (original) decision.[15]After stage 1, Mr. Baker requested and was granted an hour’s break in order to take instructions. Mr. Baker then proposed that instead of hearing submissions on what reconsideration should result in, there were other paths which I should more properly follow such as listing of the case for a fresh hearing on the issue of liability. Mr. Crawford opposed this proposal. Having taken account of both submissions and the overriding objective in rule 2 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, I did not consider it appropriate to follow the same course as would have happened had the case been successfully appealed to the EAT and remitted for a fresh hearing. This would have entailed considerable cost for both parties and all the necessary evidence was before the tribunal, either in the original bundle, witness statements or the record of proceedings.[16]Stage 2 then followed. I reminded both counsel that I needed to hear submissions:16.1 why the first appeal conducted by Mrs. Allport was fair or unfair. Mr. Crawford had submitted (in the reconsideration application submission) that it was unfair in respect of:16.1.1 Mrs. Allport’s misconceived understanding of the purpose of the appeal hearing;16.1.2 Her failure to resolve inconsistency between the written evidence of a duty CC manager (Miss Slark) [319-324] and an operations manager at JFK airport in NY (Mr. Manswell) [HB pages 340 - 342].16.1.3 MA’s comment in her letter about length of service as mitigation and her response in cross examination, showing a misunderstanding of how length of service could mitigate.16.1.4 examination of the Crew History Log (also known as the “Crew History Report”) after the hearing, and reference to 3 alleged incidents in it in the outcome letter, without the claimant having been given any opportunity to comment on it.16.2 Whether Mr. Rickwood’s appeal cured any unfairness or not, in the event of my finding Mrs. Allport’s appeal to be unfair;16.3 The impact of Mr. Rickwood’s appeal on the overall fairness of the decision to dismiss. Law applicable to an appeal[17]Mirab v Mentor Graphics UK Limited UKEAT/0172/12/DA and in particular §s51 – 54 explains the importance of the appeal in the overall assessment of fairness. §51 “I start with the first ground of appeal and the question of fairness, taking into account the internal appeal in this case. It is not really in dispute that the ET was wrong to state, as it did in the last sentence of paragraph 31, that the appeal was “only relevant if the original process was unfair”. That failed to recognise the part that the appeal process plays in the overall determination of fairness (see Taylor v OCS) and it was simply wrong as a matter of law (see Tipton and Tarbuck). §52. The Respondent urges that the ET’s findings on the appeal - that it was superficial and failed to bring any independent judgment to the process - have to be seen in context:(1) as against the limited nature of the Claimant’s internal appeal; and(2) given the ET’s very full findings on all other points on fairness and, specifically, on the points raised in the internal appeal. §53. Those are fair observations but I do not consider that I can ignore the ET’s erroneous self-direction in this case. First, because, although the ET has recorded only limited grounds of appeal being raised by the Claimant at paragraph 14.44 of its findings of fact, it would seem that there was some expansion of those points during the course of the telephone appeal hearing (see the ET’s findings at paragraph 14.45) and I do not consider I can simply assume that the broader points rejected on the appeal did not potentially raise matters that might have affected the outcome (for example, as to whether the Claimant should have been compared with Account Managers outside the UK). In the circumstances, there was thus an issue before the ET - raised as part of the overall assessment of the fairness of the dismissal - as to whether the Claimant had been unfairly denied the opportunity of showing that redundancy was an insufficient reason for his dismissal in the circumstances of this case. I return to the issue of UKEAT/0172/17/DA-20 alternatives to redundancy when addressing the second and third grounds of appeal below, but, on this first point, I do not think it could be said that the appeal was not relevant to fairness in this case because nothing raised by the Claimant on the internal appeal could, given the ET’s own findings, have made any difference to the outcome. To adopt such an approach would, in my judgment, be contrary to Tipton and Tarbuck, and more generally to the approach laid down in Polkey. §54. I reiterate, the appeal is part of the overall process in any dismissal and thus relevant to the ET’s determination of fairness. A specific part of the process might be unfair but cured by other aspects; usually the appeal itself will perform that function, but, where it is the appeal that gives rise to an unfairness in the process, that is a matter that is relevant to the ET’s assessment. I do not go so far as to say it will always, or inevitably, lead to a finding of unfair dismissal -that would be to usurp the assessment of an ET on the facts of any particular case - but it is a relevant matter and it is an error of law to simply exclude it from consideration. On this point, I am satisfied that the ET thus erred in its approach and I therefore allow the appeal on ground 1.[18]Mirab refers to the EAT case of London Central Bus Company Ltd v Manning UKEAT/0103/13/DM. Clark HHJ held: “whilst the conduct of the internal appeal process is relevant to the overall question of fairness under s.98(4), the question is whether the procedural defect denied the claimant an opportunity to show that the reason for dismissal was insufficient. It was plain that the claimant had not been denied any opportunity and that showing him the list at the hearing would have been "utterly futile". He added that “the mere fact of that procedural failing, if that is a correct characterisation, cannot displace the fairness of the original dismissal."
Findings of fact
[19]I make my findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral which was admitted at the original hearing and the various oral and written representations, responses and closing submissions of both counsel on liability and the reconsideration application. I do not set out in this judgment all of the evidence or submissions which I heard or read but only my principal findings of fact, those necessary to enable me to reach conclusions about reconsideration and its implications original decision. Did Mrs. Allport correctly understand the purpose of the appeal?[20]Mrs. Allport took the view that an appeal hearing which was a review meant that if Miss Howe did not raise new evidence on a ground of appeal, that ground was rejected [see §s23 – 24 of her witness statement].[21]Mrs. Allport consistently expressed this view:21.1 In her introduction to the appeal hearing, Mrs. Allport emphasised the need for new information [HB 454 “This meeting is your opportunity to explain your grounds of your first appeal and to present new information you would like me to consider”].21.2 In the appeal hearing, Miss Howe was unable to present new evidence for any of her appeal grounds.21.3 In her outcome letter [HB 480 – 487], Mrs. Allport rejected Miss Howe’s appeal against all the allegations (A – F), on the basis of no new evidence having been presented:21.3.1 “This has already been considered and is not new evidence. Therefore I do not consider this to be a valid point of appeal and I reject it”. [Allegation A HB 483].21.3.2 “There is no new evidence related to the situation for me to investigate and as such I reject this point of appeal” [Allegation B HB 485].21.3.3 “There is nothing new for me to consider regarding these observations and they have been considered fully by the hearing manager. Therefore I do not consider this to be a valid point of appeal and as such I reject it” [Allegation C HB 486].21.3.4 “There is no new information for me to consider. The above has already been considered by the hearing manager. Therefore I do not consider this to be a valid point of appeal and as such I reject it” [Allegations D & E HB 486].21.3.5 “The above has already been considered by the hearing manager….As a result, I have decided to reject this point of appeal”. [Allegation F 487].21.4 I accept §8 of Mr. Crawford’s (written) submission in support of this application that Mrs. Allport was asked 7 questions on this topic in cross examination. Mrs. Allport’s answers essentially made the same point. I quote two examples of her answers:21.4.1 “All of the information had been presented and discussed at previous stages. There was nothing for me to further investigate or review”.21.4.2 “It doesn’t mean that I did not review the decision. There was no new evidence that could have been added to have formed a new view”.21.5 This meant that Mrs. Allport made no findings about Miss Howe’s grounds, save to reject them with the reason that this was a review and no new evidence had been provided.21.6 This was a procedural defect. Conclusions about Mrs. Allport’s understanding[22]I find that it was not open to a reasonable employer to understand the purpose of a review appeal hearing in the way Mrs. Allport did because:22.1 She adopted an extremely narrow approach such that she considered very little.22.2 This procedural defect denied Miss Howe an opportunity to show that the reason for dismissal was insufficient Resolution of inconsistency between evidence of Miss Slark and Mr. Manswell[23]Miss Slark was a material witness in the allegation concerning breach of Covid procedures and in particular whether Miss Howe had discharged herself on her own initiative or whether she had been instructed to do so. This allegation is somewhat more complicated than I note here, but the detail is in my liability judgment and it is not necessary for these purposes to refer to all the strands of the allegation. The key point is that Miss Slark was the duty cabin crew manager and made notes in the Crew History Log that Miss Howe had not followed instructions for arrangements made for her to leave the hospital in New York, but had followed her own inclinations. Miss Slark had provided a statement for the purposes of the investigation by Mr. Cannon. Miss Slark said that Mr. Manswell advised her with whom to liaise at the hospital, following Miss Howe’s discharge. Mr. Manswell had also provided a statement in which he denied being aware that Miss Howe had been discharged from the hospital. Conclusions about inconsistency between Miss Slark and Mr. Manswell[24]I find that it was open to a reasonable employer to fail to reconcile the inconsistencies between the written evidence of Ms. Slark and Mr. Manswell because:24.1 neither Miss Slark nor Mr. Manswell were interviewed by the investigating officer, Mr. Cannon.24.2 Their statements were relatively brief.24.3 Mrs. Allport concluded that there were no inconsistencies between Miss Slark and Mr. Manswell because Mr. Manswell would not have been aware of follow up. The duty of care to follow up was on a different operations manager (Mr Lambert).24.4 On the basis of what had been written, Mrs. Allport’s interpretation of the written evidence is within the range of reasonable responses. Mrs. Allport’s application of length of service to mitigation[25]Miss Howe asked Mrs. Allport to take account of her 36 years of service on two grounds:25.1 Mr. Shirley had not taken it into account, or if he had, he had not given it sufficient weight.25.2 Dismissal was too harsh a sanction in light of her long length of service.[26]Mrs. Allport’s conclusion is at HB 484: “I am satisfied that regardless of your length of service, the sanction would not have differed for an employee of less experience”.[27]It was put to Mrs. Allport in cross examination that what she said appeared to be a complete misunderstanding about what Miss Howe had asserted. Mrs. Allport maintained her position.[28]I find that Mrs. Allport’s conclusion in the outcome letter represented her view since she repeated this under cross examination. To say that a claimant would have received the same sanction if she had had less length of service, demonstrates that Mrs. Allport had misunderstood the role of length of service in mitigation. This is a procedural defect. Conclusion concerning Mrs Allport and mitigation[29]It was not open to a reasonable employer to construe and apply mitigation regarding length of service as Mrs. Allport did because:29.1 it was illogical to compare Miss Howe to an employee with a shorter length of service. In this context, it would only have been appropriate to compare Miss Howe to an employee with greater length of service.29.2 Such a misunderstanding is extensive and this procedural defect denied Miss Howe an opportunity to show that the reason for dismissal was insufficient. Previous allegations in Crew History Log[30]After the appeal hearing, Mrs. Allport looked through the Crew History Log to look at Miss Howe’s past performance, including conduct. She said in cross examination, that Miss Howe had asked her to look for good performance and commendations. She stated in her outcome letter: “When reviewing your file from now until June 2019, while I found one customer group compliment and one group Bravo award it should be noted that there are also three behavioural incidents displayed which would have caused concern and were brought your attention at the time, from June 2019. To date, three such incidents highlight inappropriate language and comments towards British Airways managers and external providers i.e. HAL security. Although these incidents have not been taken into account in determining the outcome of this case, they do share a similar lack of understanding and ownership for your actions ” [HB 487-488].[31]These three “behavioural incidents” were recorded as follows:31.117 June 2019 11:40 “Alexandra was stopped at CRC Security before operating BA263/RUH. Two tubs of humous, a tub of cream cheese and two ice packs were confiscated. ICTS FK overheard comments made by Alexandra around “Indian people are dirty” and advised that she was carrying these items due to a health condition and that it would be her fault if anything happened to her, and that she should turn a blind eye. ICTS will be submitting a formal report” [HB 835].31.22 November 2020 14:01 (From Miss Howe) “Hi Victoria, can you shed some light on this nonsense that my manager, Anderson, is still on furlough. What the hell is systems access review…yes my manager did my review sometime in January 2020. I get a feeling this is a spoof email. Please let me know what I’m supposed to do other than delete it ”. (From “Victoria”) “Hi Alexandra… I’m disappointed at what I believe is the inappropriate tone and language in this email. I am aware that Anderson has spoken to you about this in the past and I am disappointed to see this continues” [HB 843-844].31.37 November 2020, 08:37 “called to Crew security as Alexandra had been rude to staff as she had 150 ml of liquid in her plastic bag. She stated she had been carrying this for six months and was advised that if she had a medical letter then they could letter her through with it. When I spoke to her, she said she carried it for detox purpose and did not eat on the aircraft and would have to offload herself, to which I replied I would do so. She then changed her mind and decanted liquid into a smaller bottle. She then walked off stating loudly, “thank you for the inconvenience”. This will be passed to fleet when she arrives home on Monday” [HB 846].[32]In cross-examination, it was Mrs. Allport’s evidence that she had seen the notes about these behavioural incidents but had not taken them into account. Mrs. Allport said in cross-examination that:32.1 the comment on 17 June 2019 “Indian people are dirty” was “racist. She said she always behaved professionally at work. When I saw those three elements, I felt I needed to make a reference to these in my outcome letter”. Mrs. Allport clearly considered that this behavioural incident involved a “racist” comment.32.2 “I believed that the comment captured accurately what Miss Howe said at the time”.32.3 “I do not know if those incidents had been brought to Miss Howe’s attention and I don’t see the relevance”.32.4 “These incidents and those in January 2021 shared a similar pattern of behaviour and expression”.[33]I find that Mrs. Allport’s conduct in relation to the racist comment alleged to have been said on 17 June 2019 was a procedural defect:33.1 Mrs. Allport considered that all the allegations, including this one, in the Crew History Log were accurate in content and had been drawn to Miss Howe’s attention. First, although an intention to take the matter further with Miss Howe was evinced for two incidents, there was no evidence in the Crew History Log or anywhere that this had happened. Mrs Allport in later cross-examination accepted that there was no evidence that any of these three allegations had ever been put to Miss Howe or taken further in any sense. Secondly, I found in the liability judgment that the Crew History Log was unreliable at times. Even if Mrs. Allport was not aware of its unreliability at the time, she should have checked the accuracy by some other method, and she did nothing. She should also have checked whether each behavioural incident had been drawn to Miss Howe’s attention. She did not.33.2 I find that Mrs. Allport did place weight on the behavioural incident on 17 June 2019. The reported comment at HB 835 was clearly racist and would, as such, have been indelibly marked on Mrs Allport’s consciousness. Given that two of the allegations before Mrs. Allport concerned allegedly racist comments, it is more likely than not that a discovery of what she considered an accurate report of a racist comment in the past would have appeared to her as highly relevant.33.3 Mrs. Allport should have shown the record of these behavioural incidents to Miss Howe, such that Miss Howe was aware of the content of the entries in the Crew History Log and the nature and terms of racist or inappropriate comment(s) attributed to her before making a final decision. She did not.33.4 Mrs. Allport should have sought Miss Howe’s comments before making a final decision. She did not.33.5 The first reference to these behavioural incidents was in Mrs. Allport’s outcome letter. Conclusions about Mrs Allport and allegations in the Crew History Log[34]I find that it was not open to a reasonable employer to refer to and rely on any of the behavioural incidents referred to in the Crew History Log, in particularly the clearly racist comment, as Mrs. Allport did because:34.1 Mrs Allport relied on these allegations.34.2 Miss Howe had no chance of raising any argument or objection to Mrs Allport’s referring to and relying upon these allegations.34.3 This procedural defect denied Miss Howe an opportunity to show that the reason for dismissal was insufficient. Final Stage appeal by Mr. Rickwood[35]There was almost no detail in the written submissions of Mr. Crawford or Mr. Baker as to why they maintained the position that respectively the final stage appeal was unfair/fair and did not cure/cured any flaws with the first appeal. I therefore specifically asked both counsel to elaborate and asked questions of each during their submissions.[36]At this hearing, I asked Mr Crawford to identify all the ways in which he submitted that Mr Rickwood’s appeal was unfair.[37]Mr. Crawford submitted that Mr. Rickwood’s appeal was unfair because he, as a senior manager, should have noticed of his own accord that Mrs. Allport’s record of appeal made no reference to past allegations (in the Crew History Log), but that her outcome letter did. He should therefore have realised that Mrs. Allport referred to alleged instances of misconduct in the outcome letter without having allowed the claimant an opportunity to comment on them.[38]I do not accept that Mr. Rickwood’s appeal was unfair in failing to consider this procedural defect in Mrs. Allport’s appeal because:38.1 It was not one of Miss Howe’s grounds of appeal to Mr. Rickwood. Mr. Crawford accepted this but argued that in essence, I should ignore this and treat it as a ground of appeal. In his submission, Miss Howe had no legal advice and considered that she must put in new grounds of appeal, different to those which she had brought to the attention of Mrs. Allport.38.2 I can recognise that the appeal process was difficult and stressful for Miss Howe as it would be for anyone but she is an intelligent and experienced individual. In addition, I note that Miss Howe’s trade union representative, Mr Breslin, attended the final stage appeal hearing [HB 515]. He had also attended the first appeal hearing [HB 464].The entire purpose of setting out the grounds of appeal is to alert the appeals officer (i.e. Mr. Rickwood) to that which Miss Howe wanted him to consider. Miss Howe did provide grounds of appeal for Mr. Rickwood [dated 30 June 2021 at HB 490 – 491] but they did not include this.38.3 Mr. Rickwood set out his understanding of his role in his introduction, identifying three elements [HB 515]. He stated that he must consider if a reasonable process had been followed, identify any procedural shortcomings and consider any new evidence and its impact. He could, however, only carry out these three elements in relation to grounds of appeal. It is open to a reasonable employer to confine themselves to the grounds of appeal.38.4 It has also been submitted that Mr. Rickwood should have considered length of service, but this was also not in the grounds of appeal. I have not been directed to any other source of unfairness.38.5 To act fairly, Mr. Rickwood needed to consider all the grounds of appeal put before him in writing and I am satisfied that he did. Summary of Conclusions concerning reconsideration application[39]I have reconsidered my findings and conclusion about the first appeal. I find the first appeal was unfair, as set out above.[40]I therefore vary my liability judgment (also referred to as the original judgement) at §86.[41]Mr Crawford raised issues of procedural fairness with the first appeal hearing (albeit not with the investigation or disciplinary hearing). The investigation and disciplinary hearing complied with the ACAS code of practice, but I conclude that the first appeal hearing did not because of the procedural defects explained above.[42]Furthermore, I find that the conduct of the first appeal was not within the range of reasonable responses in respect of Mrs. Allport’s approach to the purpose of the appeal hearing, length of service as mitigation and use of the behavioural incidents in the Crew History Log.[43]Had there not been a final stage appeal, I would have substituted §129 and found that the dismissal was not fair in all circumstances.[44]As there was a final stage appeal, I must therefore next consider the impact of that final stage appeal on section 98(4) of ERA 1996 in order to decide whether the conclusion from the original judgment is revoked or not.[45]Mr. Rickwood’s appeal was fair and within the range of reasonable responses for the reasons set out above.[46]For this reason, I do not revoke my original conclusion which therefore stands. The dismissal was fair in all the circumstances. I confirm that this is my Reserved (Reconsideration) Judgment with reasons in Howe v British Airways Plc No: 3315889/2021 and that I have approved the Judgment for promulgation.