Mr Michael HewittClaimantLothian Health BoardRespondent
Before
Employment Judge J HendryMr Rhidian Davies for respondent(Solicitor) for respondentDate 28 September 2022
JUDGMENT
For the reasons given orally at the Hearing the Tribunal finds:[1]that the complaints of perceived sexual orientation discrimination and harassment concluding with an incident in or around July 2018 are out of time; and[2]that it not being just and equitable to grant the claimant’s application for an extension of time under section 123(1)(b) of the Equality Act 2010 the said claims are struck out. ETZ4(WR)
REASONS
[1]This case has had a long procedural history. It is now a claim for unfair dismissal alone. It came before the Tribunal to consider the respondent’s application for the claim to be struck out on the grounds either(i) that it has no reasonable prospect of success, or(ii) that the manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable or vexatious. The respondent makes a subsidiary application that the claimant be required to pay a deposit as a condition of continuing with the claim on the basis that it has little reasonable prospect of success.[2]The claimant was unrepresented; the respondent was represented by Counsel. At the outset of the Hearing, the claimant confirmed that he understood the nature of the applications being made. It was Mr James’ position that the applications would be considered on the basis of a paperbased review. Parties lodged a joint bundle of documents, some of which were referred to. Counsel prepared a written submission to which he spoke. As part of this, he summarised the relevant legal principles which he fairly set out.[3]The three separate components of the submission, the claimant’s responses to each, and the Tribunal’s decisions are set out in turn below.[4]The first submission was that the claim had no reasonable prospects of success. Mr James submitted that the claim had become a simple one of unfair dismissal alone, that the factual circumstances leading to the dismissal were clear and not disputed (even although the label to be applied to the dismissal was pled as either capability or SOSR by the respondent in its ET3), and that the only issue to be determined was substantive fairness.[5]He pointed to a number of steps take by the respondent to facilitate the claimant’s return to work, relying principally on the terms of an appeal outcome letter issued. He submitted that the respondent had made every effort to allow the claimant to return to his substantive role, and that he had refused to engage, such that had no reasonable prospect of successfully demonstrating that his dismissal was outwith the range of reasonable responses.[6]In response to this aspect of the application, the claimant spoke of a series of events over a lengthy period of time leading to his absence from work. He described significant issues with his line manager which in part led to his absence from work. He attributed the dismissal to his manager’s dislike of him.[7]The Tribunal had no hesitation in refusing this aspect of the application. Claims of unfair dismissal are heavily fact reliant and this is clearly a case where there is complex factual background which needs to be considered. It is not even certain from the ET3 what the respondent contends to reason for dismissal to be. It pleads as alternatives that the claimant was in fact unfit to work (capability), or that he was asserting that he was unfit (SOSR). Contrary to Mr James’ submission, therefore, the reason for dismissal is not clear, far less a matter of agreement with the claimant. Moreover, in looking at fairness, the Tribunal cannot make any meaningful assessment in this case without hearing the evidence. That is true also in respect of the procedures followed. It was noteworthy that Mr James focussed on the appeal outcome in making his submission, yet contended that this was not a case where the appeal was said to be curative.[8]As Mr James accepted, there is a high bar to clear before claims are struck out as having no reasonable prospects of success (Balls v Downham Market High School and College [2011] IRLR 217). The question is whether there is a realistic as opposed to a fanciful prospect of success (Ezsias v North Glamorgan NHS Trust [2007] I.C.R. 112). This is clearly a case where no determination can be made without hearing the evidence. There are significant disputes over facts. It is quite clear that the claimant has a realistic prospect of success depending on how the evidence emerges.[9]On the second part of the application – that strike out should be granted on the basis that the proceedings have been conducted by the claimant in a way that is scandalous, unreasonable or vexatious – Mr James submitted that the claimant had repeatedly and wilfully disregarded clear directions (albeit not Orders) from the Tribunal. He referred to what he described as excessive witness order applications. The main focus of his submission related to allegations made by the claimant of inappropriate conduct on the part of the respondent or its representatives. These centred around alleged witness tampering and the withholding or destruction of relevant evidence. Reference was made to a warning from the Tribunal that he should not make a serious allegation of witness tampering without the evidence to substantiate it. In response to this present application, the claimant had made reference to an attempt to “pervert justice”. He had also made a reference to the respondent’s representative behaving “like a child being caught with his hand in the cookie jar”.[10]Mr James submitted that the claimant’s conduct was “a misuse of the legal process to vilify others” and involved “giving gratuitous insult to the court in the course of such process” (Bennett v Southwark London Borough Council [2002] ICR 881). As a consequence, he submitted that a fair trial was no longer possible. Addressing proportionality, he argued that strike out was entirely proportionate, the claimant having displayed an escalating pattern of unreasonable behaviour and gratuitous insult.[11]In response, the claimant stated that he had not meant any attack against the professionalism of the respondent’s representatives. He suggested that he had found difficulty in performing the role of both party and representative.[12]In relation to witnesses, he pointed out that he had been permitted to seek voluntary attendance of witnesses and found some of the information given to him by the respondent to be lacking. He mentioned that at least one witness who had previously indicated a willingness to attend had changed their mind. This led to his suggestion of tampering. In response to the Tribunal asking for evidence of the allegation he stated that he did his best to provide the evidence as he saw it.[13]As for the allegations of evidence being destroyed or withheld, he referred to being told by the respondent that certain material was no longer available or that certain material would not be provided.[14]He stated that his reference to perverting justice was intended to mean a denial of access to justice given the affordability of the deposit order sought (£1,000). The reference to “hand in the cookie jar” was intended as a characterisation of childish behaviour by the respondent. He apologised for any offence he had caused to the respondent or its representatives on a number of occasions during the course of his submissions.[15]Whilst the Tribunal found some of the comments of the claimant to be intemperate or misguided, it was not satisfied that they met the statutory test in rule 27(1)(b) of the Rules. The claimant is unrepresented and clearly feels strongly about his case. His language was at times immoderate, but has not been of a character that shows an intention to vilify. It is more misguided than malicious, as reflected in the claimant’s explanations and his apology. In relation to witness applications, although the Tribunal previously refused orders, the claimant was told he could seek voluntary attendance so cannot be criticised for doing that.[16]Moreover, there is nothing to suggest that a fair trail is no longer possible. The conduct is simply not of that order. The case seems otherwise effectively managed. Again, it is not necessary to consider proportionality, but even if the other aspects of the test were satisfied, to strike out a claim with an unrepresented claimant in these circumstances would be highly disproportionate with real prejudice to a claimant who has been pursuing the claim for around 2 years.[17]Turning to the third aspect of the application, Mr James asked for a maximum deposit order to be made. In support of the application, he referred to his submissions on strike out and argued that if the prospects did not warrant strike out, they satisfied the lesser test of “little reasonable” prospects which merit the order of a deposit. He referred to the need to consider means but made no comment on that.[18]The claimant asked that no deposit be ordered. He is in receipt of universal credit only and has no savings.[19]For the reasons given by the Tribunal for refusing the first strike out application, the application for a deposit order is refused. Even considering the lesser hurdle which applies, the outcome is the same. A full exploration of the evidence is required.[20]The respondent’s applications having been refused, the case will proceed to a final Hearing in accordance with the timetable already in place.
Introduction
[21]On the basis of the Appeal Hearing Outcome letter, it appeared that Mr Short dismissed the claimant’s appeal and substituted “Some Other Substantial Reason” for the reason for dismissal, being both the claimant’s refusal to participate in rebuilding working relationships with his former colleagues and his refusal to consider redeployment to another role within NHS Lothian. In the absence of evidence from Mr Short the Tribunal was unable to make any findings as to his decision-making process and whether he intended to substitute alternative reasons for the claimant’s dismissal.[22]In evidence the claimant admitted that he had refused to mediate with former colleagues and, further, that he had not been open to being redeployed into the roles suggested by the respondents to him.[23]The claimant has applied for no other employment since his dismissal. His explanation was that he needed to concentrate on these proceedings. The claimant has communications experience and has completed further education in communications at Leith Nautical College. The claimant also has administrative experience.[24]At the time of his dismissal the claimant earned £1,667.92 gross per month. The claimant has been in receipt of universal credit since the date of his dismissal. Observations on the Evidence[25]The Tribunal noted that Mr Robertson was clear in his evidence to the Tribunal that the reasons given by the Appeals Officer Mr Short in refusing the claimant’s appeal were the reasons for the claimant’s dismissal. In other words, his evidence was that the reasons given by him to the claimant for the claimant’s dismissal (to be found in the letter of dismissal 222-224 at 223) had been superceded for the reasons for dismissal given in the letter of the outcome of the Appeal (276-279 at 279).[26]The Appeals Officer Mr Short did not attend the Tribunal to give evidence and explain the decision-making process in the Appeal. It was submitted that he was in France on holiday. The Tribunal observed that Mr Short remains an employee of the respondents and the fact that he was away at the material time must have been overlooked by the respondents when this case was listed. Further, it transpired that the necessary consents had not been requested by the respondents in sufficient time for his evidence to be given remotely.[27]In his place Mrs Jackie Houston gave evidence. It was accepted that whilst she was present during the Appeal and drafted the letter giving the outcome of the Appeal, she did not take part in the decision- making process. In any event, even had Mr Short been present, the respondents faced the difficulty that, given the refusal of the Amendment, the reasons in the ET3 for the claimant’s dismissal remained the reasons given by the dismissing officer Mr Robertson.[28]At the outset of Mrs Houston’s evidence on 22 September 2022 she was questioned by the Employment Judge about an incident that had taken place on the 21 September 2022. To this end, the claimant had reported to the clerk that he had overheard a conversation with Mr Robertson and Mrs Houston which took place at Platform 4 of Haymarket Railway Station after close of business on the 21 September 2022. The claimant reported that Mr Robertson had expressed to Mrs Houston that giving evidence at the Tribunal had been ‘tough’ and that the Employment Judge was ‘really pedantic’. According to the claimant, the conversation had concluded with Mr Robertson saying that he would call Mrs Houston.[29]Mrs Houston admitted that a conversation had taken place at Haymarket Railway Station at which Mr Robertson had expressed that giving evidence had been ‘tough’. She said that Mr Robertson had said that the Employment Judge was ‘really pedantic’. She denied, however, that there had been any other communications between Mr Robertson and herself and submitted that as an HR professional she was aware that such communications could not take place. The Tribunal found the evidence of Mrs Houston on this point and indeed as a whole to be entirely credible.[30]The Tribunal found the evidence of the claimant to have been given honestly. The claimant however found it difficult to keep to the issues as defined, despite being reminded of the same in the course of his evidence. The claimant mounted little by way of challenge to the reasons put forward for his dismissal and instead focused on historic issues. Submissions The respondents provided a summary of their submissions which are replicated below. The burden of establishing the reason for dismissal lay with the employer. However, what the employer had to establish was the set of facts known to or beliefs held by the employer which cause him to dismiss the employee (Abernethy v Mott Hay and Anderson 1974 ICR 323, at 330C). The task of the Tribunal is to make findings as to the employer’s reasons then seek to characterise them in terms of s98(1) (UPS Ltd v Harrison UKEAT/0038/11, at [25]). The label is a matter for the Tribunal. It is accordingly possible for the Tribunal to find that the employer’s reason for dismissal in terms of s98(1) was not one that was pled, provided that certain requirements are met (Hannan v TNT-IPEC (UK) Ltd [1986] IRLR 165, at [22]). Given that the Tribunal makes findings in fact about the employer’s reasons for dismissal, it is not fatal to a Respondent if a decision maker does not give evidence (Elmore v Governors of Darland High School UKEAT/0209/16, at [22]). The question of reasons is one of fact, to be ascertained in the usual way, by assessing the evidence adduced and determining whether the relevant fact is proved using that evidence on the balance of probabilities. The reason for dismissal was that given by the dismissing manager. He was the one who dismissed the Claimant. He gave evidence. His reasons were the pled reasons. If the Tribunal was not with the Respondent on that, the reason for dismissal was sickness absence, albeit given by the appeal manager. If the Tribunal considered that the reason for dismissal was that given by the appeal manager in the conclusion of the appeal letter, then the Respondent had established that as a matter of fact. All of the adminicles of evidence that had been adduced supported the position that the reasons set out in the appeal outcome letter were the appeal manager’s reasons. There was no evidence to the contrary. Notwithstanding that it was not the Respondent’s pled case, the Respondent had established on the balance of probabilities that the reason for dismissal was that given by the appeal manager in the appeal outcome. That was a substantial reason justifying dismissal. The dismissal was fair in all the circumstances. The Respondent was entitled to into account the Claimant’s own views on his fitness to work (BS v Dundee City Council 2014 S.C. 254, at 269). Even if any ill health was caused by the Respondent, that did not of itself render any dismissal unfair (McAdie v Royal Bank of Scotland [2007] IRLR 895). The Claimant was seen by the Respondent’s Occupational Health department on a number of occasions. Following the appeal hearing, he refused to be seen by Occupational Health. He told the dismissal hearing he was unfit. Various alternative roles were explored, within the confines of what the Claimant could or was willing to do. None of those were successful. The Claimant’s case was, at its highest, a disagreement with the grievance outcome. He refused to come back to work until the issues he raised in the grievance were addressed and he felt safe. He also refused redeployment. The Respondent was put in an impossible position. Any reasonable employer would have dismissed. Dismissal fell within the range of reasonable responses. If the dismissal was found to be unfair, a range of reductions fell to be made to any award. A reduction ought to be made to the basic award in terms of s122(2). The Claimant’s consistent refusal to attend work rendered a reduction just and equitable. The Claimant ought to have mitigated his loss. He had not applied for any jobs. He would have been able to find an administrative role at a salary broadly equivalent to his role with the Respondent within 6 months. A 100% Polkey reduction ought to be made to the compensatory award. The Respondent was faced with the impossible combination of the Claimant refusing to attend work while simultaneously refusing redeployment. Dismissal was inevitable. No uplift ought to be made for any failure to comply with the ACAS code. The claim did not relate to grievance proceedings. No evidence had been shown of any failure, or that any failure was unreasonable. The figure for a week’s pay the Claimant had given in his Schedule of Loss was slightly too high. The compensatory award was in any event subject to the statutory cap, as calculated in line with that revised figure for a week’s pay. The claimant chose not to provide submissions
The Law
[31]Section 98 of the Employment Rights Act 1996 indicates how a tribunal should approach the question of whether a dismissal is fair. There are normally two stages. Firstly, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in s98(1) and (2). Secondly, if the Tribunal is successful at the first stage, the tribunal must then determine whether the dismissal was fair or unfair under s98(4), which requires the tribunal to consider whether the employer acted reasonably in dismissing the employee for the reasons given. Discussion and Decision The dismissal[32]S98(1) of the Employment Rights Act 1996 states that it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal. To this end, the respondents’ ET3 reflects the reasons of the dismissing officer only. However, the dismissing officer, Mr Robertson, stated that the reasons given by the Appeals Officer Mr Short were the reasons for the claimant’s dismissal. Those reasons were not foreshadowed in the ET3, and neither was evidence led from Mr Short. Against that background the Tribunal concluded that they were unable to make findings as to the respondents’ real reasons for their dismissal of the claimant.[33]The respondents’ position as set out in their submissions was that the reason for dismissal was that given by the dismissing officer Mr Robertson in evidence and were foreshadowed in the ET3. The Tribunal considered this submission to be surprising in that it is contrary to the evidence led by them from Mr Robertson. Mr Robertson’s evidence at the Hearing was that the reasons given by the Appeals Officer, Mr Short, were the reasons for the claimant’s dismissal.[34]Separately, the respondents submitted that it is possible for the Tribunal to find that the employer’s reason for dismissal in terms of s98(1) was not one that was pled, and cited the case of Hannan v TNT-IPEC (UK) Ltd (1986) IRLR 165 at 22 in support of this proposition. On consideration of this authority, the Tribunal observed that the case of Hannan involved the relabelling of the same facts and could therefore be distinguished from the present circumstances where the reasons provided for dismissal by the Appeals Officer involved examination of entirely different facts. To this end, the Tribunal noted that the claimant at Tribunal was deprived of fair notice of the real reasons to be relied upon by the respondents in dismissing him in that the same were not foreshadowed in the ET3. Neither was he afforded the opportunity of cross examining Mr Short, who was effectively the sole decision-maker in this case.[35]The respondents also cited the case of Elmore v Governors of Darland High School UKEAT/0209/16 in support of the proposition that it is not fatal to the respondents if a decision maker does not give evidence. However, the Tribunal noted that the case of Elmore involved the failure to call an Appeals Officer in circumstances where the Appeal was dismissed for the same reasons given by the Dismissing Officer. In that respect, detailed findings in fact had been able to be made on the basis of the evidence of the Dismissing Officer. The Tribunal found the case of Elmore to be of no assistance in the present circumstances where the Appeals Officer had substituted entirely different reasons for dismissal but was not present to give evidence.[36]The respondents also cited the case of UPS v Harrison UKEAT/0038/11 at paragraph 25 as authority for the proposition that the task of the Tribunal is to make findings as to the employer’s reasons then seek to characterize them in terms of s98 of the Employment Rights Act 1996, Paragraph 25 states: “25 We have no doubt that the correct approach, when deciding whether an employer’s reason for dismissal relates to conduct, or capability, or indeed is some other substantial reason justifying dismissal, is to make findings as to the employer’s own reasons for dismissal. Once those findings have been made the Tribunal should then ask itself how the employer’s reasons are best characterised in terms of section 98(1). It is not bound by the label the employer puts on its reasons; but is seeking to characterise the employer’s reasons rather than to make findings of its own about the employee’s conduct or capability.”[37]The Tribunal considered this authority and concluded that the dicta in para 25 was not in point in circumstances where the Tribunal is unable to make findings as to the employer’s reasons for dismissal.[38]In concluding that they were unable to make findings for the reasons for the claimant’s dismissal, and that therefore the claimant’s dismissal is unfair, the Tribunal had regard to the terms of the overriding objective and in particular the need to ensure that the parties are on an equal footing. To this end the Tribunal noted that the claimant remained unrepresented throughout these proceedings whilst the respondents had had the benefit of legal representation (and latterly counsel). Despite that representation, they failed to update their pleadings to reflect the real reason for the claimant’s dismissal and, further, failed to call the individual who was the decision maker in this case notwithstanding the fact that he remained in their employment. Loss[39]In calculating loss, the Tribunal had regard to the claimant’s up to date Schedule of Loss.[40]On the basis of their Findings in Fact, the Tribunal concluded that the claimant had failed to mitigate his loss in that he had applied for no jobs since his dismissal. However, there was no evidence led as to how long it might have taken the claimant to obtain another administrative job with a similar salary and to this end Mr James’ submissions that it would have taken the claimant six months to find alternative employment were made in a vacuum.[41]The Tribunal then considered whether any ‘just and equitable’ reduction in terms of s123(1) of the Employment Rights Act 1996 was applicable in the circumstances of this case. In doing so, they considered the well known principles arising from the authority of the case of Polkey v AE Dayton Services Ltd 1988 ICR 142, HL.[42]The Tribunal observed that ‘Polkey’ deductions are applicable where there is a proven procedural irregularity in an otherwise fair dismissal. In the circumstances of this case the dismissal has been found to be unfair as the real reason for the dismissal was not foreshadowed in the ET3 and, further, the decision maker was not called to give evidence.[43]Whether or not ‘Polkey’ truly applies in the facts of this case, the Tribunal retains a wide discretion in terms of s123(1) of the Employment Rights Act 1996 to award compensation “as the Tribunal considers just and equitable.” In determining that a compensatory award should not be made in this case the Tribunal had regard to the fact that at the time of his dismissal the claimant had been absent from his employment from 2 October 2018. Accordingly at the time of his dismissal the claimant had been absent for eighteen and a half months. The Tribunal also had regard to the fact that by the time of the Appeal it was not in dispute that the claimant was not open to attempts to redeploy him leaving the only option to the respondents to be to return him to his former employment. However, the claimant was candid in his evidence that he was not prepared to mediate with his former colleagues to rebuild his working relationships with them.[44]The Tribunal considered that no breach of the ACAS Code of Practice had been established in this case.[45]The Tribunal then proceeded to consider the issue of contributory fault. As the respondents have not established the reason for dismissal, no deduction for contributory fault is made under s123(6) of the Employment Rights Act 1996 on the basis that without the reason for dismissal being established, it cannot be determined whether the claimant caused or contributed to that reason.[46]After considering the facts of this case, the Tribunal determined that the claimant’s basic award should be reduced to nil under s122(2) of the Employment Rights Act 2022. To this end, the Tribunal concluded that the length of the claimant’s absence, coupled with the fact he was not open to redeployment nor to rebuilding his working relationships with his former colleagues renders it just and equitable to reduce his basic award to nil.[47]It is for these reasons that it is the decision of this Tribunal that the claimant was unfairly dismissed. In the circumstances of this case no basic or contributory award is made. Employment Judge: Jane Porter Date of Judgment: 28 September 2022 ANNEX STATEMENT OF AGREED FACTS
The Law
[1]The Claimant has supplied a ticket for a London 2012 Olympic event. That ticket is at p88 of the bundle. It bears the address “Michael Hewitt, c/o ehealth service desk, st johns hospital, howden, Livingston, eh54 6pp”.[2]The Claimant has supplied a letter from the Department for Work and Pensions. That letter is at p417 of the bundle. That letter gives various dates in relation to a claim of Employment Support Allowance.[3]The Claimant raised a grievance. The grievance outcome letter is at pp110 – 113 of the bundle. The outcome letter states that a meeting was arranged to provide the Claimant with feedback on the outcome on 18 September 2018. The outcome letter states that the Claimant was accompanied by his trade union representative at that meeting. The letter is dated 18 September 2018.[4]The Claimant became absent from work. The management case for dismissal states that this absence began on 2 October 2018 (at p131).[5]A promoting attendance at work meeting was held. The outcome letter from the meeting is at pp194 and 195 of the bundle. The outcome letter states that the meeting took place on 12 November 2018.[6]The Claimant attended an Occupational Health appointment. The report of this appointment is at pp190 – 192 of the bundle. The report states that the appointment took place on 28 November 2018. The report states that the Claimant was assessed as unfit for work. The report states that the expected timescale of his return to work was unknown.[7]A case conference was held with Occupational Health. A record of that meeting is at p135 of the bundle. That record states that the case conference took place on 21 January 2019.[8]A promoting attendance at work meeting was held. The outcome letter from that meeting is at pp197 and 198 of the bundle. The outcome letter states that the meeting took place on 27 March 2019.[9]A promoting attendance at work meeting was arranged. The outcome letter from that meeting is on pp200 and 201 of the bundle. The outcome letter states that a meeting took place on 7 May 2019.[10]A promoting attendance at work meeting was held. The outcome letter from that meeting is on pp203 and 204 of the bundle. The outcome letter states that the meeting took place on 6 June 2019.[11]An incapacity dismissal hearing was scheduled. The invitation letter to that hearing is at p117 of the bundle. The hearing was to be on 5 August 2019.[12]The management case for dismissal was produced. This is at pp127 – 204 of the bundle. A timeline is at pp130 and 131.[13]The incapacity dismissal hearing did not go ahead. The Claimant submitted a letter from his GP. That letter said that the Claimant stated he was unable to attend the hearing. That letter is at p121 of the bundle. A letter from the Respondent confirming that the hearing was postponed is at p122 of the[14]The Claimant attended an Occupational Health appointment. A letter written by the Occupational Health doctor following that meeting is at pp390 and 391 of the bundle. The letter states that the appointment took place on 2 September 2019.[15]The Claimant attended an Occupational Health appointment. The report of this appointment is at pp123 – 126 of the bundle. The report states that the appointment took place on 8 October 2019.[16]An incapacity dismissal hearing was convened. The outcome letter from that hearing is at pp205 and 206 of the bundle. The letter states that this hearing was held on 12 November 2019. The Claimant was unrepresented. The hearing did not proceed.[17]The Claimant’s trade union withdrew representation from him. The trade union’s email to the Claimant setting out reasons for this is at pp220 and 221 of the bundle. That email is dated 3 December 2019.[18]An incapacity dismissal hearing was convened. The outcome letter from that hearing is at pp209 – 211 of the bundle. The letter states that the hearing took place on 27 January 2020. The letter is dated 30 January 2020.[19]The Claimant was dismissed. His notice period ran from 27 January 2020 until 19 April 2020. The Claimant had outstanding annual leave. He was paid for this annual leave. The payslip for April 2020 is at p246 of the[20]The Claimant appealed against his dismissal. An appeal hearing was scheduled for 20 March 2020. This hearing was postponed at the Claimant’s request due to the coronavirus pandemic. Emails relating to this are at pp225 – 228 of the bundle.[21]The Claimant’s ET1 was received by the Tribunal on 4 June 2020 (p5).[22]The appeal hearing was rescheduled. An invitation letter is at p249 of the[23]The Claimant’s trade union again withdrew their representation from him. An email confirming this is at p255 of the bundle. That email is dated 7 August 2020.[24]A hearing took place in relation to the Claimant’s appeal. An outcome letter from the initial hearing is at pp261 and 262 of the bundle. The letter states the hearing took place on 10 August 2020. Following on from that meeting, various pieces of further information were sought.[25]The Claimant and the Respondent exchanged emails regarding that further information. The emails between the Claimant and the Respondent are at pp263 – 264, 270 – 275, and 341 of the bundle. The emails are dated between 24 August and 28 August 2020.[26]The Claimant’s appeal against dismissal was not upheld. The outcome letter is at pp276 – 278 of the bundle. That letter is dated 8 October 2020.[27]The Claimant’s gross monthly pay while in employment with the Respondent was £1,667.92. A payslip demonstrating this is at p245 of the