Ms J Armstrong v Speirs Gumley Property Management: 4103316/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103316/2019

Between

Ms Jill ArmstrongClaimant

Speirs Gumley Property ManagementRespondent

Before

Employment Judge L Wiseman

Mr T Pacey (instructed by Counsel) for claimant

Ms M Dalziel (instructed by Solicitor) for claimant

Mr I Wheaton (instructed by Counsel) for respondent

Mr A D Philp (instructed by Solicitor) for respondent

Date 5 October 2021

JUDGMENT

The tribunal decided to dismiss the claim in its entirety.

REASONS

[1]The claimant presented a claim to the Employment Tribunal on the 2 April 2019 alleging she had been unfairly dismissed and discriminated against E.T. Z4 (WR) because of disability in terms of direct discrimination; discrimination arising from disability; harassment and victimisation.

[2]The respondent entered a response admitting the claimant had been dismissed for reasons of conduct but denying the dismissal had been unfair. The respondent conceded the claimant was a disabled person in terms of section 6 of the Equality Act, but denied the allegations of discrimination.

[3]The claims for the tribunal to determine were:• unfair dismissal;

• direct (disability) discrimination where it was asserted the less favourable treatment was the way in which the claimant was treated, including her dismissal;

• discrimination arising from disability where it was asserted the less favourable treatment was dismissal which arose as a consequence of the claimant’s speech impairment;

• harassment where it was asserted the unwanted conduct was

(i) Mr Friel imitating her at a lunch;

(ii) Mr Friel commenting on the quality of her speech in a negative manner;

(iii) being reported to the Police on the 15 November when an allegation of drink driving was made;

(iv) payment of statutory sick pay from 23 November to 21 December and

(v) dismissal; and

• victimisation where it was asserted the claimant had done a protected act when she raised her grievance against Mr Friel on the 17 July 2018. The detriments said to have occurred because she had done the protected act were (i) she was taken through a disciplinary process; (ii) she was issued with a final written warning; (iii) she was told by Mrs MacDonald on the 8 October 2018 that she could not remain in the respondent’s employment; (iv) she was subjected to improper behaviour by Mrs MacDonald on the 15 November 2018 when she was pressured to accept a settlement agreement and prevented from returning to work; (v) she was vexatiously reported for drink driving;

(vi) she was taken through a further disciplinary process; and

(vii) she was dismissed.

[4]We heard evidence from the claimant and Mr John Paul Longmuir, a former colleague. We also heard from Mr Grant Hunter, a solicitor and guest at the event at which it was alleged Mr Friel had mimicked the claimant; Mr Gary MacDonald, an employee of the respondent; Mr Brian McManus, Director, who heard the claimant’s grievance; Mr Tom McKie, Director, who took the decision to dismiss; Mr Ian Friel, Managing Director, who heard the appeal; Ms Gillian McPeake, Associate Director, to whom the claimant made comments regarding the confidential protected meeting and Ms Lorraine MacDonald, owner of the company.

[5]We were also referred to a jointly produced file of productions. We, on the basis of the evidence before us, made the following material findings of fact.

Findings of fact

[6]The respondent is a private unlimited company, involved in the business of residential and commercial property management, and residential letting. The respondent employs 67 employees.

[7]The claimant’s employment commenced on the 2 April 2007. She was employed as Head of Commercial Management, managing a team of five employees.

[8]The claimant was diagnosed with oral dysplasia (a condition which may lead to mouth cancer) in 2013. She has had two surgical procedures to remove part of her tongue and is unable to produce saliva. The condition affects the claimant’s speech. The claimant uses an oral gel to help with her dry mouth and an alcohol spray which is used to numb the tongue before eating or drinking.

[9]The claimant is a disabled person in terms of section 6 of the Equality Act and was so at the relevant time of these events and the alleged acts of discrimination. Ian Friel; Appraisals and the claimant’s Grievance

[10]The claimant reported to Mr Ian Friel, Managing Director, when he joined the company in May 2014. The claimant and Mr Friel initially had a good working relationship. Mr Friel was responsible for the claimant’s annual appraisal and the appraisals for 2015 (page 85), 2016 (page 88) and 2017 (page 92) were very positive. In 2016 Mr Friel wrote that “I can pay you no better compliment than say that the Commercial Department is one less thing to worry about knowing that you are heading up the team.”

[11]The relationship between Mr Friel and the claimant had, by the time of the 2018 appraisal, started to deteriorate. Mr Friel was aware the Commercial department and Residential department dealt with different brokers for insurance. Mr Friel told the claimant that the Residential management broker offered better rates, particularly if both bits of business were given to them. He left this with the claimant to take forward. The claimant omitted to take this forward.

[12]Mr Friel sent an email to the claimant on the 11 May 2018 (page 155) where he stated “I am concerned that Deacon were not given the opportunity to price the commercial portfolio as we promised they would in recognition of the help they gave us …”.

[13]Mr Friel then sent another email to the claimant (page 153) stating “Gordon has one speed and isn’t dynamic enough for us in Res Man. What a lost opportunity for them.”

[14]The claimant responded to this email stating “That’s a shame it didn’t work out. He has always performed well for us in the undynamic Commercial Department.”

[15]Mr Friel considered the claimant’s response to be disrespectful.

[16]Mr Friel was advised, at the end of May 2018, by Ms Lorraine MacDonald, owner of the business, that her nephew Mr Gary MacDonald, who worked in the claimant’s team, had raised issues regarding the claimant and her management style. Mrs MacDonald informed Mr Friel that they would speak to staff in the department to investigate whether these concerns were generally held by the staff. (See below for findings regarding this matter).

[17]Mr Friel subsequently had to carry out the claimant’s 2018 appraisal in early June (page 98). He found this very difficult because of the disrespect the claimant had shown and because he was aware concerns had been raised by staff which were to be investigated. Mr Friel felt the staff concerns had to be referenced in the appraisal but without getting into the details. Mr Friel noted it was difficult to close off the appraisal on a positive note when the whole team was at times demoralised and unhappy. This was a concern for the respondent and Mr Friel noted the claimant wanted to have one-to-one’s with staff to try to resolve matters.

[18]Mr Friel sent the claimant’s draft appraisal to Ms MacDonald for review and informed the claimant of this when he sent her the draft appraisal on the 21 June (page 101). The claimant responded to Mr Friel the following day (page 99) and in her response she questioned when she was going to be provided with details of the concerns and given an opportunity to address them with the team. The claimant also described the appraisal as a “fait accompli” and a “box ticking exercise”. The claimant copied her response to Ms MacDonald (page 100).

[19]Mr Friel responded to this email (page 99) noting the questioning tone of the email was indicative of her lack of respect and that he would speak to her about it when it was appropriate to do so.

[20]Mr Friel subsequently emailed the claimant at length on the 25 June 2018 (page 170) to set out a full response to all of the points she had raised. Mr Friel acknowledged the appraisal had focussed on recent disclosures made by staff and which related to her management style. Mr Friel confirmed it would not have been appropriate to discuss this in detail, although it had to be referred to. Mr Friel confirmed a thorough investigation would take place and the claimant would have an opportunity to address the concerns in the correct forum.

[21]The claimant raised a grievance against Mr Friel on the 17 July 2018 (page 109). The claimant made reference to having been told the staff had raised concerns about her, but those concerns remained unsubstantiated. The claimant felt her appraisal had solely focussed on her management style. The claimant felt she was being bullied because she had supported her team after Mr Friel had spoken negatively about them. The claimant also alleged Mr Friel had mimicked her and made fun of her speech impairment; she referred to an incident at a lunch, and named Mr Grant Hunter as having witnessed it.

[22]The claimant was advised by letter of the 19 July 2018 (page 112) from Mr McKie, Director, that he would be conducting the investigation into her grievance and that a meeting would take place on the 23 July.

[23]The notes of the meeting on the 23 July were produced at page 113. Mr McKie was aware that (on the advice of Mentor, who provide employment law and HR advice to the respondent) Mr Friel had carried out an investigation into the staff concerns. Mr Friel had met with the staff in the department and put to each of them the questions prepared by Mentor. Mr McKie understood that part of the claimant’s grievance was that it was in fact Mr Friel who lay at the heart of the complaints about her and that staff had been pressured into providing information and agreeing to sign off the statements.

[24]Mr McKie met with each member of staff whom the claimant managed and obtained from them confirmation that they had given the statement of their own free will; that they had read the statement and agreed with its contents, and had signed it freely.

[25]Mr McKie also interviewed Mr Friel and a note of that meeting was produced at page 124. Mr McKie put each of the matters raised in the claimant’s grievance to Mr Friel for discussion. Mr Friel denied ever having mimicked the claimant or having made any comments or jokes about the claimant’s disability. Mr Friel recalled one meeting where the claimant had had a dry mouth and he had offered a drink of water.

[26]Mr McKie interviewed Mr Charles Adams, a retired Director who had worked with both the claimant and Mr Friel (page 135). Mr Adams recalled the claimant’s operation and described it as having left the claimant’s tongue “a bit tighter”. He recalled her speech had been impaired after the operation, but that it improved with time. He confirmed he had not ever observed or heard Mr Friel ridiculing the claimant.

[27]Mr McKie also interviewed Mr Grant Hunter, Solicitor, who had attended the lunch (page 138). Mr Hunter did not recall anything in the nature of Mr Friel mimicking the claimant or ridiculing her.

[28]Mr McKie sent the claimant a copy of the notes of the investigation meeting which he had held with her, and confirmed he had interviewed Mr Friel.

[29]The claimant was invited to attend a grievance hearing on the 8 August 2018, chaired by Mr Bryan McManus, Director. Mr McManus went through the detail of the claimant’s grievance and the notes of the investigation meetings Mr McKie had held with the claimant, Mr Friel, Mr Adams and Mr Hunter.

[30]Mr McManus wrote to the claimant on the 10 August 2018 (page 141) giving the outcome of the grievance. Mr McManus noted the claimant was of the opinion Mr Friel had instigated the team raising issues about her, and had endeavoured to manipulate and control that process. Mr McManus noted this opinion appeared to be based on the claimant having been told by a team member (whose identity she would not disclose) that Mr Friel was “gunning” for her. Mr McManus confirmed Mr Grant Hunter had been interviewed but could not recall Mr Friel having mimicked the claimant. Mr McManus confirmed he could not uphold the grievance.

[31]The claimant was given the right to appeal against the grievance outcome. The claimant wrote a letter of appeal but did not ever send it to Ms Lorraine MacDonald, and did not pursue it. Staff concerns and the disciplinary hearing

[32]The staff concerns regarding the claimant came to light when Mr Gary MacDonald, who is the nephew of Lorraine MacDonald, met with Ms MacDonald at the end of May 2018 and told her the atmosphere in the department was horrendous. He had worked for the respondent company for 5 years, and was line managed by the claimant. He initially found the working environment positive, but this changed over time because of the claimant’s mood swings and her micro-managing of the team.

[33]Mr MacDonald told Mrs MacDonald that employees were fearful of asking questions of the claimant and tended to wait until she was out of the department to raise issues with the other senior members of staff. Also, staff could tell what sort of mood the claimant was in when she arrived for work, and this tended to determine the standard for the day.

[34]Ms MacDonald was shocked to hear this of the claimant because she had not ever witnessed the sort of behaviour referred to. Ms MacDonald contacted Mr Friel, told him what had been reported to her, and that she had decided to deal with it informally by chatting to the other members of staff to see if there was a problem. Ms MacDonald spoke to Luciano Pia; Ms MacDonald and Mr Friel spoke to John Paul Longmuir and Mr Friel spoke to Kate Murray and Barbara Grieve. The discussions with staff on the 29 June generally disclosed the same concerns voiced by Mr MacDonald.

[35]Ms MacDonald and Mr Friel met with the claimant to make her aware of the staff concerns, and suggested to her she tell the department she had been made aware of their concerns.

[36]The following week Ms MacDonald was advised by Mentor that the matter could not be dealt with informally and that she should arrange to meet with staff to take a statement. Ms MacDonald asked Mr Friel to deal with this. He was provided with a list of questions by Mentor to ask staff.

[37]Mr Friel met with Mr MacDonald on the 2 July and a note of that meeting was produced at page 198. The note was in the format of a letter which set out two standard paragraphs of the purpose of the meeting, and then responses to the 7 set questions. Mr MacDonald described the specific issues as being “Jill’s mood in the morning is a key indicator of how good your day might be – within a few minutes of seeing her demeanour you’ll know it’s not going to be a good day. When Jill is down, everyone knows it and the atmosphere is oppressive – there is a wariness and fear of unrest. When it’s good it is good and Jill can be good company but these days are far fewer in number than the bad days.” Mr MacDonald also referred to a lack of training and a sense of the claimant blaming the person for not knowing how to perform the task.

[38]The “letter” was signed by Mr Friel and by Mr MacDonald to confirm it was a true record of the discussions.

[39]Mr Friel also interviewed Mr Longmuir (page 202). The “letter” dated 2 July noted Mr Longmuir described the issues with the claimant as having existed for a long time, and that they had become worse since she had become Head of Department. The main issues were mood swings, being prone to outbursts, raising her voice and shouting demands.

[40]Mr Friel also interviewed Luciano Pia (page 206) who spoke of terrible mood swings and a terrible atmosphere in the department.

[41]Kathleen Murray was interviewed by Mr Friel (page 210). Ms Murray referred to the claimant having heated discussions with Mr Longmuir which she did not consider to be appropriate in front of staff. She also referred to the working atmosphere being determined by the claimant’s mood. Ms Murray queried whether these issues were health related.

[42]Mr Friel also interviewed Ms Barbara Grieve (page 213) who noted the concerns regarding the working environment had been going on since the claimant became Head of Department, although they had been more noticeable in the past year. Ms Grieve referred to the claimant’s manner and the fact she tended to stand at her desk and shout across rather than come to your desk.

[43]The staff members were all interviewed again by Mr McKie on the 25 July to investigate whether they had provided the information to Mr Friel, and signed the statement, freely. Mr Longmuir told Mr McKie the staff felt they had “hung Jill out to dry but [he] just wanted things in the department to be normal”. Mr Longmuir noted the claimant’s attitude had improved recently and that she was clearly making an effort. Ms Murray also noted that since the issues had been brought to light things had improved.

[44]The claimant was not told initially that formal meetings with staff were taking place. She noticed staff were disappearing during the day and subsequently she was told by Mr Longmuir that “Ian Friel is gunning for you”. The claimant was informed, as part of the appraisal process (see above) of the investigation into staff concerns. The claimant was also interviewed by Mr McKie on the 21 August 2018 (page 144) where a summary of the points raised by staff was discussed with her.

[45]The claimant was advised by letter of the 5 September 2018 (page 149) that she was required to attend a disciplinary meeting to answer the allegations that she:• had behaved inappropriately to your subordinate team members in the Commercial Department. This related specifically to subjecting the team members to mood swings, behaving and communicating in a confrontational, abrupt and disrespectful manner towards them and applying an overbearing management style;

• through your conduct you have created a working environment where your team members feel unable to, or are fearful of, approaching you for assistance. Such conduct detracts from a productive working environment and can impact on team health, confidence, morale and performance of those affected by it, including anyone who witnesses or has knowledge of the unwanted or unacceptable behaviour; and

• you have engaged in inappropriate and disrespectful behaviour towards your line manager, Managing Director, Iain Friel, through your email and face to face communications with him. It is alleged that those communications amount to insubordination (details and copies of 14 email communications were provided).

[46]The claimant was advised the alleged actions were viewed as serious misconduct. She was provided with the notes of the investigation meetings with staff.

[47]The disciplinary hearing took place on the 13 September 2018 and the notes of the hearing were produced at page 239. Mr McKie chaired the meeting and was accompanied by Ms Sheena Thorburn, Senior Employment Law and HR Consultant with RBS Mentor, who acted as a note taker and witness. The claimant told Mr McKie that she did not want to go through everything again, she had not prepared for the meeting and that she just wanted a decision. Mr McKie did not consider the claimant’s lack of engagement to be helpful, but he proceeded with the hearing and put the allegations to the claimant.

[48]Mr McKie was aware the claimant was going on holiday the following day and so he adjourned the hearing to consider the claimant’s responses in order to give the claimant a verbal decision. Mr McKie advised the claimant, when the meeting reconvened, that he had noted the claimant accepted she had behaved in an inappropriate and disrespectful manner to her team members and Mr Friel, and accepted her behaviour could not be tolerated. He further noted the claimant had not offered any mitigation in respect of her behaviour towards staff or Mr Friel. Mr McKie considered that for those reasons a disciplinary sanction was appropriate. Mr McKie issued the claimant with a final written warning.

[49]The decision was confirmed in writing by letter of the 26 September (page 255). The claimant was given a final written warning because in her position she was a representative of the senior management team and expected to lead by example and demonstrate the respondent’s values to employees at all times. Mr McKie referred to the claimant’s initial contemptuous approach to the hearing but noted she did eventually appear to show contrition for her actions and confirmed an intention to make amends to those affected by her behaviour. Mr McKie set out a number of recommendations on which he hoped to have the claimant’s co-operation. The recommendations included apologising to her department and to Mr Friel.

[50]The claimant had the right to appeal against Mr McKie’s decision, but she confirmed at the disciplinary hearing that she did not intend to appeal. Mr McKie, in the written decision, noted the claimant was going on holiday and confirmed the period for appeal was within 5 working days of her return from annual leave on Monday 1 October. The claimant did not exercise her right to appeal. Protected conversation

[51]Mrs MacDonald considered the claimant’s apology to staff in her department and to Mr Friel to be critical. Mrs MacDonald was aware the claimant was on holiday and returned to work on Monday 1 October. Mrs MacDonald asked Mr McKie during that week whether the claimant had apologised as recommended. She had not. Mrs MacDonald decided to meet with the claimant the following Monday.

[52]Mrs MacDonald called the claimant to her office on Monday 8 October and enquired why no apology had been issued yet to either the team or to Mr Friel. The claimant said she was looking for guidance and that she just wanted things to return to normal. Mrs MacDonald formed the impression the claimant had no intention of apologising. Mrs MacDonald told the claimant she intended to invite her to have a protected conversation, explained what this was and confirmed a written invitation to the meeting would be issued.

[53]Mrs MacDonald wrote to the claimant on the 16 October. The letter, entitled “without prejudice”, invited the claimant to a meeting to explore the options available.

[54]Mrs MacDonald and the claimant met on the 22 October for a protected conversation. The discussions went well and settlement was agreed in principle. It was also agreed the claimant would leave employment on the 5 November. There was a discussion regarding how to tell staff the claimant was leaving and it was agreed the claimant would tell staff she was leaving because she had a new job. Staff members were subsequently invited to attend the Board Room where the claimant informed them she was leaving.

[55]The parties ultimately did not achieve settlement and Mrs MacDonald asked the claimant to return to work on the 15 November. Mrs MacDonald asked the claimant to take another couple of days to consider the offer which had been made. Report to Police

[56]Mrs MacDonald was subsequently advised by Mr Friel and Mr McManus that staff had seen the claimant in the office and the claimant had made some comments to them about why she was back. The staff had also detected a smell of alcohol from the claimant.

[57]Mrs MacDonald spoke with Ms Gillian McPeake and asked her to set out in an email the details of her discussion with the claimant. Ms McPeake did so (page 259) and explained she had stopped the claimant to ask why she was in the building and the claimant had responded “between you and me, we are going through a tribunal and they have not offered me enough money and Lorraine has agreed that I come back on Monday to work my notice”. Ms McPeake also confirmed she had smelled alcohol from the

[58]Ms Tracey McLenaghan also provided an email (page 260) setting out her conversation with the claimant on the 15 November. Ms Cheryl Dearie also provided an email (page 261).

[59]Mrs MacDonald and the Directors discussed what action to take regarding the smell of alcohol. Mr McKie took the decision to inform the Police because the claimant was driving a company car and contact with the insurance company had confirmed that letting the Police deal with the matter was the way to address it.

[60]The Police called at the claimant’s house to investigate the situation. The claimant explained that she used alcohol-based products to relieve her dry mouth. The Police were satisfied with this explanation and left. Second grievance and disciplinary

[61]Mrs MacDonald decided to suspend the claimant (page 262) because allegations of breaching the confidentiality of recent discussions had been brought to her attention and which required to be investigated.

[62]The claimant was, by letter of the 21 November (page 264) invited to attend a disciplinary hearing to answer the allegation that on the morning of Thursday 15 November she breached the confidentiality and without prejudice nature of the recent protected discussions she had had with Mrs MacDonald, by disclosing details of these discussions to a colleague. The letter made reference to the live final written warning and gave notice the outcome of the meeting may be dismissal. Mr McKie enclosed copies of various emails including those provided by Ms McPeake, Ms McLenaghan and Ms Dearie.

[63]The disciplinary hearing was postponed for four weeks because the claimant was signed off by her GP because of oral dysplasia. The claimant, in an email to Mr McKie (page 267) asked for clarification which part of the draft proposal sent to her solicitor she had breached. The claimant also questioned how there could be a live final written warning when the respondent had not adhered to the terms of the disciplinary. The claimant queried whether Mr McKie had been aware, when conducting the disciplinary hearing, that the decision to end her employment had already been made by Mrs MacDonald.

[64]The claimant raised a grievance complaining that the respondent had not told staff she was still employed and that callers to the company had been told she was no longer employed. The claimant was advised the grievance and disciplinary hearings would be heard together and chaired by Mr McKie.

[65]The claimant’s GP confirmed she was fit to return to work and attend the grievance/disciplinary hearing and Mr McKie confirmed by letter of the 21 December (page 301) that the hearing had been rescheduled to take place on the 3 January 2019.

[66]Mr McKie was accompanied by Mr Gilbert Doull, Senior Employment Law and HR Consultant with Mentor. The notes of the hearing were produced at page 305. The claimant’s grievance was dealt with first. The claimant’s complaint focussed on the respondent not telling staff she was returning to work, and informing callers that she was no longer employed. Mr McKie noted that it had been the claimant who informed staff she was leaving, and staff had not been told otherwise because of the protected discussion taking place with Mrs MacDonald and the need to wait for the outcome of those discussions.

[67]The claimant, with regard to the disciplinary hearing, told Mr McKie he had lied when he told her to go along with things and she would keep her job. The claimant felt she had done this but now she was facing more disciplinary action and in the circumstances she felt the final written warning should not stand. The claimant walked out of the hearing.

[68]Mr McKie continued the hearing to consider the evidence supporting the allegation that confidentiality had been breached. He decided to uphold the allegation, which he considered merited a further written warning. This, together with the live final written warning, escalated the decision to dismissal with notice.

[69]Mr McKie wrote to the claimant by letter of the 4 January 2019 (page 312) confirming the decision not to uphold the grievance. The letter also confirmed Mr McKie’s decision to dismiss the claimant because there was a live final written warning in place and in force at the time of the further misconduct. The claimant’s employment ended on the 3 January 2019 and she was paid in lieu of notice. The Appeal

[70]The claimant appealed against both the grievance and disciplinary outcomes (page 317). The claimant understood that any appeal would be heard by Mr Friel and she complained about this, stating it was “highly inappropriate” to expect her to engage with Mr Friel, “when all matters pertaining to [my] employment that have been raised by the respondent are as a direct result of me raising a formal grievance against Iain himself back in June 2018”.

[71]The respondent sought advice regarding Mr Friel hearing the appeal and satisfied itself that as Mr Friel had not had involvement in these matters since June 2018 and as there were no other Directors available to hear the appeal, that he should proceed to deal with it.

[72]Mr Friel wrote to the claimant on the 14 January 2019 (page 319) to invite the claimant to an appeal hearing on the 16 January. The claimant was unable to attend this hearing, and Mr Friel agreed to it being rearranged. The claimant again made reference to the respondent being “totally unreasonable to even expect [me] to be in the same room as Iain Friel, far less to have him chair a grievance/disciplinary appeal when we are where we are because of his inappropriate actions. I have no respect for him or his position of Managing Director.”

[73]The appeal hearing took place on the 23 January 2019 and the notes of the hearing were produced at page 335. The claimant reiterated her concerns that she had been told to return to work but no-one knew she was coming back, and callers had been told she no longer worked there. The claimant said she could produce evidence of this, and Mr Friel allowed time for her to do so. The claimant confirmed she was appealing against the decision to dismiss but did not want to speak about it, beyond asserting she had accepted the final written warning based on a lie.

[74]The claimant sent an email to Mr Friel on the 24 January, from a friend, confirming that when she had contacted the respondent she had been told the claimant no longer worked there.

[75]Mr Friel wrote to the claimant on the 28 January 2019 (page 343) to confirm the outcome of the appeal hearing. Mr Friel set out the basis of the appeal against the grievance outcome, his response to it and his decision not to uphold the appeal. He noted, with regards to the disciplinary appeal that the claimant had not wanted to talk about it and so it had not been possible to explore the appeal points noted. Mr Friel confirmed he had reviewed all available evidence but had decided not to uphold the appeal. He set out the reasons for his decision.

[76]The respondent’s Sick Pay policy was produced at page 80. The respondent operated a contractual sick pay scheme, but there were certain circumstances where there was no entitlement to contractual sick pay. Those circumstances included “if you are involved in disciplinary proceedings under the Firm’s disciplinary rules and procedures”. The claimant confirmed that prior to the disciplinary hearing she had received contractual sick pay, but this ceased during the disciplinary process.

[77]The claimant, following her dismissal, registered with employment agencies and secured a number of interviews. The claimant obtained part time employment in July 2019, until the 17 February 2020. She earned £4938.91 in this employment. The claimant was subsequently successful in securing employment with a former colleague, and has been employed as Head of Accounts since 18 February 2020. She has, to date, earned £26,821.43 in this employment.

[78]The four people whom the claimant used to manage have all left the employment of the respondent since the claimant’s employment ended. Credibility and notes on the evidence

[79]The claimant’s case was, essentially, that Mr Friel had orchestrated her removal from the company by encouraging/leading/pressurising staff into making complaints about her and her management style and that all of this happened because she had started to stand up to him. The claimant also asserted Mr Friel mimicked her speech impairment and that he had a penchant for making fun of disability. The claimant considered the protected discussion occurred because Mrs MacDonald had decided she could not continue in the company.

[80]We did not find the claimant to be an entirely credible and reliable witness and we say this for two key reasons. Firstly, because the claimant’s belief that Mr Friel was behind what happened to her was absolute notwithstanding the fact(i) he was asked by Mrs MacDonald to carry out the interviews with staff;

(ii) Mr McKie interviewed staff regarding the statements which had been provided; and

(iii) Mr Friel had no part in the decision-making process in respect of her dismissal.

[81]Secondly, the claimant undermined her discrimination claim on a number of occasions when she put forward explanations for what happened to her which were nothing to do with her disability. For example, the claimant’s case was that this all happened because she started to stand up to Mr Friel.

[82]The claimant also undermined her claim when she was asked in cross examination whether the first and second disciplinary and her dismissal were because of her disability and she answered “No”. She was also asked whether the settlement discussions took place because of her disability, or because she had complained about Mr Friel mimicking her; or whether she was reported for drink driving because she had complained about Mr Friel mimicking her and she replied “No”.

[83]The claimant, having told the tribunal that Mr Friel “often commented” about her not speaking well, and that he “used disability as a management tool”, struggled to identify occasions when comments were alleged to have been made. The claimant identified three instances:(i) the lunch event where Mr Friel was said to have mimicked her;

(ii) a meeting in 2016/17 when Mr Friel referred to her not speaking well in a snide manner; and

(iii) an occasion in February 2018 when she challenged Mr Friel about how he had spoken to Mr Longmuir, and Mr Friel in turn made a movement with his tongue which the claimant was no longer able to do. We were surprised, against an alleged background of there being a “toxic environment” and Mr Longmuir referring to 20/30 instances of comments being made, that the claimant could only refer to three alleged instances, which she struggled to detail.

[84]The tribunal, in order to accept the claimant’s position that Mr Friel orchestrated her dismissal, would have to have accepted that all of the other Directors and Mrs MacDonald were in on it, and we simply could not accept that proposition. Mrs MacDonald is the owner and sole shareholder in the respondent. She has a management team to run the business but all of the major decisions remain with her. This was evidenced not only by her evidence but also when the Directors, on a number of occasions, referred to something being for Mrs MacDonald to decide. Furthermore, Mr McKie impressed as a witness of independent mind with a sense of fairness. This was demonstrated, for example, when the Directors met to discuss the report of alcohol being smelled on the claimant and what should be done. It was Mr McKie who decided the matter required to be reported to the Police and who took that action.

[85]There was a dispute between the evidence of the claimant and Mr McKie regarding the claimant’s position that prior to entering the disciplinary hearing, Mr McKie met her and told her just to “go along with everything and [she] would not lose her job: everything would be ok.” The claimant told the tribunal that she had done as he suggested and this explained some of the statements she had made, and the fact she did not appeal against the final written warning. Mr McKie rejected the suggestion he had said that to the claimant. He described the disciplinary hearing as “awful from the outset” because the claimant did not want to engage in the process, just wanted a decision and said she had not read the papers she had been sent. Mr McKie described the claimant as having a “belligerent attitude to the whole process”.

[86]We preferred the evidence of Mr McKie regarding this matter. We reached that conclusion because we found Mr McKie (as set out below) to be a credible and reliable witness, and we accepted his position that he had not said to the claimant to go along with everything and she would not lose her job. We also had regard to the fact that for the claimant to suggest Mr McKie said this undermined her position that Mr Friel was orchestrating her removal from the company and that the Directors were simply dancing to his tune.

[87]We did not find Mr Longmuir to be either a credible or reliable witness. Mr Longmuir, in his evidence, suggested the questions he had been asked by Mr Friel had been leading and tried to find fault with the claimant’s management style; that he felt pushed into signing the statement; that it was a fait accompli; he wasn’t aware of the trigger for the investigation and felt the claimant had been hung out to dry. He also told the tribunal that Mr Friel was “pushy, demanding and used bigoted language.” He said it was common practice for Mr Friel to mimic the claimant and he felt the claimant was under pressure to copy Mr Friel’s management style.

[88]Mr Longmuir, in cross examination, accepted he had been told the interview with Mr Friel was a formal process. He also accepted that his comment that he did not know it was going to lead to any formal action against the claimant had not been true. Mr Longmuir accepted he had given the answers noted in the statement; that they were true and that he had had concerns for approximately 5 years.

[89]We considered Mr Longmuir’s evidence demonstrated that he sought to face both ways by, on the one hand, telling the claimant he had been led into saying things and pressured into signing the statement, but on the other hand, admitting the comments recorded were his comments, were true and that he had signed the statement freely. We, for these reasons, did not attach any weight to Mr Longmuir’s evidence.

[90]We found the respondent’s witnesses to be both credible and reliable. We make comment in particular regarding the following witnesses: Mr Gary MacDonald was a very straightforward witness. He acknowledged the claimant had been his mentor during 2016 and 2017 and that this had been very successful. However he went on to describe that the working environment had become “tough and difficult to work in” and that it was affecting people. He rejected the suggestion that Mr Friel had been the instigator of the investigation into the claimant’s management style, and confirmed that he had been the instigator following his discussion with Mrs MacDonald.

[91]Mr McKie was an impressive witness: his evidence was straightforward and considered. He had a very good recall of events and provided explanations for the decisions he had made.

[92]Mr Friel denied the allegations of mimicking the claimant and making comments regarding her speech impairment. Mr Friel described a deteriorating relationship with the claimant caused by her belligerent attitude and lack of respect, which the claimant did not deny. Mr Friel told the tribunal that he had been “shocked and bewildered” when he read the claimant’s grievance, which he described as not being true. He believed he had simply been doing his job in conducting the investigation requested by Mrs MacDonald. Mr Friel described that after the claimant raised the grievance against him he became “very wary” of interactions with the claimant. He gave an example where he would normally have attended the team meeting with the claimant and given a briefing, but he decided not to do so.

[93]Mrs MacDonald was also an impressive witness, who presented as very straightforward inasmuch as she wanted to speak to the claimant to understand what was going on, why it had happened and how to sort it.

[94]We noted that one of the themes running through this case was the claimant’s approach to her disability and speech impairment, which we would describe as it was something that had happened to her, which she dealt with and “just got on with”. The claimant, for example, noted she used alcohol-based products to assist with her dry mouth. She told the tribunal “I’ve been using these products for years; they are on my desk at work although I don’t make a fuss about it”. This really encapsulated the claimant’s approach: there was no fuss about it.

[95]The respondent’s witnesses were all aware of the claimant’s disability and the fact she had had several procedures over the years which had initially impacted on her speech. The respondent’s witnesses appeared genuinely taken aback at the suggestion the claimant’s disability had been the reason for, or influenced, their decisions. It was, for example, put to Mrs MacDonald that the claimant’s disability and treatment were a relevant factor to consider. Mrs MacDonald responded “It never entered into anything. It wasn’t a part of any decision”. Respondent’s submissions

[96]Mr Wheaton submitted that in terms of the Burchell test the respondent had a fair reason for dismissing the claimant, and had dismissed her after a fair investigation. Mr Wheaton submitted the tribunal could not go behind the issuing of the final written warning unless there was discrimination or malfeasance. There had been no assertion by the claimant that she had been dismissed for raising a grievance. Mr Wheaton reminded the tribunal that he had put each and every claim to the claimant and asked her whether what had happened occurred because she had raised a grievance and the claimant had in everything except the victimisation claim, said no.

[97]Mr Wheaton submitted the evidence of Mr Gary MacDonald and Mrs Lorraine MacDonald completely undermined the evidence of the claimant that Mr Friel was gunning for her. Mr Friel was invited by Mrs MacDonald to do an investigation into staff concerns. Further, Mrs MacDonald carried out some of those interviews. There was an attempt to resolve matters informally but ultimately the respondent was advised by Mentor to conduct a formal investigation and to obtain statements, based on the standard questions they prepared for Mr Friel.

[98]The claimant knew the matters discussed during the protected discussion were confidential, yet she told Mrs McPeake of the discussions. This further instance of misconduct breached the final written warning and led to the claimant’s dismissal.

[99]Mr Wheaton acknowledged the claimant attacked the involvement of Mr Friel in the appeal hearing, but this was a small company and Mr Friel was the last Director, at a senior level, who had not had involvement in the earlier hearings. Mr Wheaton noted the claimant had objected to Mr Friel but had not attended or taken part in the hearing.

[100]Mr Wheaton submitted the respondent had followed a fair procedure in dealing with these matters. The claimant was critical of an alleged lack of investigation regarding the second grievance, but it was submitted it was a narrow issue and little would have been achieved by asking everyone if people had phoned in and been told the claimant had left. Mr Friel in any event allowed the claimant the opportunity to produce the evidence she had, and he investigated this.

[101]Mr Wheaton submitted that if there was any unfairness in the procedure followed by the respondent, there should be a 100% Polkey reduction to compensation because the employment relationship between the claimant and Mr Friel had broken down. Further, there should be a 100% reduction to reflect the claimant’s contributory conduct based on her belligerent attitude, her aggressive emails and her conduct.

[102]The claims of direct discrimination and discrimination arising from disability could not succeed because there was no evidence to support them and the claimant had accepted in cross examination that disability was not the reason for what had occurred. The claimant alleged the payment of statutory sick pay rather than contractual sick pay was less favourable treatment. Mr Wheaton submitted this claim could not succeed in circumstances where the claimant had accepted the terms of the Policy stating that (contractual) sick pay is only paid in full when the employee is not undergoing a disciplinary process.

[103]The victimisation claim was based upon the protected act being the grievance brought by the claimant. However, the grievance related to historic allegations from April/May 2018; and these allegations were only raised after the claimant was made aware of the issues raised by her team. Mr Wheaton invited the tribunal to note the investigation into staff concerns had already started before the grievance was raised: and it was parked whilst the grievance hearing proceeded. Further, the claimant had not ever stated this is happening because I raised a grievance: it was mentioned for the first time in the claim form.

[104]Mr Wheaton invited the tribunal to prefer the evidence of Mr Friel and conclude the alleged harassment did not occur. Mr McKie had investigated the matter and had spoken to Mr Hunter. Mr McKie had been very careful not to lead Mr Hunter when questioning him in the interview. However, if the tribunal found that it did happen, it was out of time insofar as the incident occurred in April 2017 and was not raised until February 2019, and it would not be just and equitable to extend time.

[105]The claimant could not say when the alleged negative comments were made but in any event there were no alleged instances of such comments after the grievance was raised. Accordingly, even if the comments were made, they stopped in June 2018 and so the claim is out of time.

[106]Mr Wheaton submitted the claimant had been very sketchy in the detail of what was alleged to have happened, and her evidence was unreliable. For example, the claimant told the tribunal she had submitted an appeal against the grievance outcome, however when referred to the documents, she acknowledged she had sent the grievance letter to her own account but never acted on it.

[107]The claimant was unable to particularise the comments said to have been made and unable to say whether any comment had in fact been a general enquiry into her health.

[108]Mr Wheaton invited the tribunal to disregard the evidence of Mr Longmuir after he accepted the documents in the productions were true and that he had freely signed them. He submitted that in contrast, the respondent’s witnesses had been clear and helpful. The respondent had taken advice from Mentor all the way through.

[109]Mr Wheaton submitted the claim should be dismissed. However if the tribunal upheld any of the discrimination complaints an award of injury to feelings in the low Vento band would be appropriate. The claimant told the tribunal she “tuned out” the comments and that she had been annoyed rather than hurt. Claimant’s submissions

[110]Mr Pacey submitted that it was clear Mr Friel had not been the right person to carry out the investigation into the staff concerns. He had conducted a closed and negative investigation, the purpose of which was to lead to one result only. The 2018 appraisal was helpful in showing his view of the allegations. Further, the statements followed a proforma theme and staff were pressured into signing the statement. This much was clear from being told Mr Friel needed them to sign it, and from Mr Longmuir’s evidence.

[111]Mr Friel targeted the claimant because of her disability. Mr McKie’s summary of the points made in the statements was negative and none of the positive points made by staff were included: for example, the claimant improved once the comments had been made, and this was not taken into account.

[112]The claimant was told by Mr McKie to go along with it and she would keep her job. The claimant’s objective was to keep her job and so she had gone along with it. This can be seen from some of the comments made by the

[113]Mr Pacey submitted the final written warning had been a sham because of what had been said to the claimant by Mr McKie prior to the disciplinary hearing, and because of the subsequent protected discussion with Mrs MacDonald. There was no attempt to set targets for the claimant or provide her with guidance: there was no plan for improvement.

[114]Mrs MacDonald took advice regarding having a protected discussion and it was submitted this suggested she had already made up her mind to go down this route. The claimant had been pressured to accept the offer.

[115]Mr Pacey submitted there had been no attempt to talk to the claimant following Ms McPeake’s email, and prior to suspending her. There was no investigation. The letter inviting her to attend a disciplinary hearing made clear that the outcome could be dismissal. Mr Pacey submitted this had already been decided.

[116]Mr Pacey submitted the procedure followed by the respondent was indicative of them being on a path to dismiss the claimant. The decision to dismiss the claimant had been unreasonable because there had not been a reasonable investigation and no account had been taken of the claimant’s length of service, her record, the impact of her disability and the fact there had been an improvement. Further, it was not appropriate for Mr Friel to hear the appeal in circumstances where the claimant was of the belief he was targeting her for dismissal. The claimant’s belief was supported by the fact Mr Friel did not investigate or review the position: he was not concerned there had been no investigation into the second grievance.

[117]Mr Pacey submitted that any relationship breakdown arose from Mr Friel’s harassment of the claimant; and there was, in any event scope to repair the relationship with Mr Friel. On this basis a 100% Polkey reduction was not appropriate. No reduction should be made for contributory conduct because if a proper process had been followed, the claimant would not have been belligerent. She was pushed into that behaviour by the respondent.

[118]Mr Pacey invited the tribunal to accept the claimant’s evidence and uphold the discrimination complaints on the basis the respondent’s behaviour had been retaliatory. The claimant had given a clear account of being mimicked at the lunch; of the comments made by Mr Friel and of him imitating her tongue. This had been supported by the evidence of Mr Longmuir. Mr Friel, when asked about this in the grievance investigation, was careful and defensive.

[119]Mr Pacey submitted that if there was a timebar issue, there had been no prejudice to the cogency of the evidence. The claim had not been brought earlier because the claimant was trying to keep her job. Disability had been used as a tool against her and had Mr Friel not carried out the investigation and targeted the claimant, the protected conversation would not have happened. An award of compensation should be made with injury to feelings being in the mid band of Vento. Discussion and Decision Direct disability discrimination

[120]We had regard firstly to the terms of section 13 Equality Act which provides that an employer directly discriminates against a person if it treats that person less favourably than it treats or would treat others, and the difference in treatment is because of a protected characteristic. The claimant argued that she had been treated less favourably than the respondent treated or would treat others when they withheld the payment of contractual sick pay between 23 November and 21 December 2018, and when she was dismissed.

[121]There was no dispute regarding the fact the respondent did not pay the claimant contractual sick pay in the period 23 November to 21 December 2018 and did dismiss the claimant. We must decide whether the claimant has been treated less favourably than a comparator in the same or not materially different circumstances to the claimant. Section 23(1) Equality Act makes clear that on a comparison of cases there must be no material difference between the circumstances relating to each case. Section 23(2) goes on to provide that the circumstances relating to a case include a person’s abilities if the protected characteristic is disability.

[122]The claimant did not provide any evidence regarding the treatment of others. The respondent’s witnesses were not asked, for example, whether other employees who went off sick during the disciplinary process had been paid statutory sick pay rather than contractual sick pay. There was simply no evidence before the tribunal regarding how the employer would have treated others in the same, or not materially different, circumstances to the claimant. Indeed, the only evidence provided by the claimant was to confirm she was paid contractual sick pay prior to the disciplinary, but not during it, and that she thought this was because it was discretionary.

[123]The respondent’s Sick Pay policy (page 80) confirmed the respondent operated a contractual sick pay scheme. The rules which applied to the payment of contractual sick pay included one which provided that there was no entitlement to contractual sick pay if the employee was involved in disciplinary proceedings under the company’s disciplinary rules and procedures.

[124]The claimant was referred to this provision in the Policy and asked if she agreed the respondent was entitled to pay her statutory sick pay rather than contractual sick pay in the relevant period. The claimant replied “I didn’t read it, but if that’s what it says I’ll accept it”.

[125]We concluded, with regard to this aspect of the claim, that the claimant had failed to show she was treated less favourably than others were or would have been. The claimant did not lead evidence to show how others had been treated, or would have been treated, in the same or not materially different circumstances. Further, the claimant appeared to accept the respondent had been entitled to pay her statutory sick pay when she was off sick during the disciplinary process and this undermined her position that the reason for not paying contractual sick pay was because of her disability.

[126]The claimant asserted her dismissal had been less favourable treatment, but there was no evidence before the tribunal regarding how the respondent treated, or would have treated, others who had been on a final written warning and engaged in a further instance of misconduct. We did consider (very generally in the absence of any evidence) how a hypothetical comparator in the same circumstances as the claimant would have been treated by the respondent, and we noted the final written warning contained a warning that the claimant must maintain satisfactory standards of performance or she could face further disciplinary action which may lead to her dismissal. We had regard to the fact such a warning accorded with the industrial knowledge of the members of the tribunal regarding the operation of final written warnings insofar as a further instance which, of itself, may not warrant dismissal, could lead to dismissal where there is a live final written warning in place.

[127]The claimant argued there was no fair reason for dismissal in circumstances where Mr Friel had orchestrated her dismissal because of her disability. We deal with this issue in detail below: suffice to say here that we did not accept the claimant’s argument. We preferred the evidence of Mr Friel and the respondent and we decided there was a fair reason for dismissal and that reason was misconduct.

[128]We decided to dismiss this aspect of the complaint because the claimant has not been able to show she was treated less favourably and has not been able to demonstrate a causal link between the dismissal and her disability.

[129]We decided to dismiss the complaint of direct discrimination. Discrimination arising from disability

[130]We had regard to section 15 Equality Act which provides that a person discriminates against a disabled person if s/he treats the disabled person unfavourably because of something arising in consequence of the disabled person’s disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[131]The claimant asserted she had been treated unfavourably when the respondent dismissed her. Further, it was said the dismissal was caused by the quality of the claimant’s speech and the fact the respondent knew her ability to communicate would be restricted at a later date. This was something which arose in consequence of the claimant’s disability.

[132]The claimant, in order to succeed with this claim, must establish:-• that she suffered unfavourable treatment and

• that the treatment was because of something arising in consequence of her disability.

[133]There is no need for a comparator in order to show unfavourable treatment under section 15. We were satisfied the fact the claimant was dismissed was unfavourable treatment. We next asked whether that unfavourable treatment was because of something arising in consequence of her disability. There was no dispute regarding the fact the claimant’s speech was impaired by her disability: it was something which arose in consequence of her disability. The issue was whether the unfavourable treatment was because of this.

[134]The claimant’s position was that Mr Friel had a penchant for using disability for fun and that he used to make comments about her speech and imitate her. The claimant cited three examples of this:(i) being mimicked at the awards lunch in April 2017;

(ii) having a comment made in a snide manner at a meeting in 2016/2017; and

(iii) being mimicked by Mr Friel in February 2018 when she challenged him about reprimanding Mr Longmuir.

[135]We noted there was no dispute regarding the fact Mr Friel had joined the respondent company in May 2014 and that he and the claimant had enjoyed a positive working relationship. The claimant’s appraisals for 2015, 2016 and 2017 demonstrated and supported this. Mr Friel was aware of the claimant’s disability (diagnosed in 2013) throughout this time. There was no suggestion of any mimicking or comments prior to 2016/2017.

[136]There was no evidence to inform the tribunal whether the claimant’s speech was impaired from the time of diagnosis, or whether that arose from the subsequent procedures. There appeared to be no dispute regarding the fact the impairment to the claimant’s speech had initially been more severe, but over time it had improved significantly.

[137]The claimant made no complaint at the time of these alleged incidents: the first time they were raised was in the claimant’s grievance in July 2018, after she had been informed of the staff concerns. Mr McKie investigated the allegation that Mr Friel had mimicked the claimant at the awards lunch. He spoke to Mr Friel, who denied doing it; and he also spoke to Mr Grant Hunter, a solicitor attending the lunch as a guest of the respondent, and whom the claimant asserted had witnessed the incident and commented on it. Mr McKie was most careful in questioning Mr Hunter to ensure he did not ask leading questions. Mr Hunter did not recall any incident of mimicking or of saying to the claimant that “you need to be thick skinned to work with the company”. Mr Hunter confirmed he would have been alert to inappropriate behaviour if it occurred.

[138]The claimant did not provide any details (in her grievance or to this tribunal) regarding the alleged comment made in a snide manner by Mr Friel in 2016/2017. The claimant, with reference to the allegation of Mr Friel mimicking her in February 2018, did explain he had imitated a movement with his tongue.

[139]The issue for this tribunal to determine is whether the unfavourable treatment (being dismissed) happened because of something (the claimant’s speech impairment) which arose in consequence of disability. We, in considering this issue, had regard to a number of facts. Firstly, we had regard to the fact the claimant was first diagnosed with oral dysplasia in 2013 and had had two operations since then. The evidence generally reflected that the claimant’s speech impairment had initially been more severe but had improved significantly over time. Secondly, the claimant had reported to Mr Friel since 2014 and there was no suggestion there had been any issues regarding their relationship or any unwelcome comments or mimicking in the period 2014 to 2016/2017. We therefore questioned what (if the claimant is to be believed) happened to change that? The claimant suggested that she had started to stand up to Mr Friel. We considered that if we accepted that at face value as being the reason for a change in their relationship, it had nothing whatsoever to do with the claimant’s speech impairment.

[140]Thirdly, the claimant’s position was that Mr Friel orchestrated her removal from the company by encouraging/pressurising her staff to make complaints regarding her management style. This position was based on Mr Longmuir having told the claimant that Mr Friel was “gunning” for her. The claimant was not aware that Mr Friel had been instructed by Mrs MacDonald to accompany her carry out an initial investigation into the concerns raised by Mr MacDonald. We noted there was no suggestion by the claimant that Mr Friel had encouraged Mr MacDonald to raise those concerns.

[141]We found as a matter of fact, accepting the evidence of Mrs MacDonald, that after Mr MacDonald had spoken to her regarding the claimant’s management style, she told Mr Friel and confirmed they would speak informally to the other members of staff to see if the concerns were generally held. Mrs MacDonald and Mr Friel carried out this initial informal investigation. Mrs MacDonald, acting on advice from Mentor, subsequently asked Mr Friel to conduct the formal investigation and put to the employees the questions prepared by Mentor.

[142]Fourthly, the claimant’s concern that Mr Friel had orchestrated all of this was investigated by Mr McKie, who spoke to each member of staff to ask them directly whether they had given their comments freely and signed their statement voluntarily. Each member of staff, including Mr Longmuir, confirmed they had done so.

[143]Fifthly, the claimant was not dismissed because of the staff concerns regarding her management style.

[144]Sixthly, Mr Friel was not involved in the decision to give a final written warning or the decision to dismiss. The tribunal, if we were to believe that Mr Friel was behind it all, would have to believe that Mrs MacDonald and the other Directors had all conspired with Mr Friel, or danced to his tune, and this was not our impression of the witnesses (or indeed the evidence).

[145]Seventh, the claimant undermined her case when she was asked in cross examination whether the reason for her dismissal was because of something arising in consequence of her disability and she answered “no”.

[146]We decided, having had regard to the above factors, that there was no evidence to support the claimant’s position. We further decided the claimant was not dismissed for something arising in consequence of disability. We decided to dismiss this claim. Harassment

[147]We referred to section 26 Equality Act which provides that a person harasses another if s/he engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

[148]The claimant made five allegations of harassment:(i) Mr Friel imitated her speech impediment at a business lunch in April 2017;

(ii) Mr Friel commented on the quality of her speech in a negative manner;

(iii) the respondent made an allegation of drink driving to the Police in November 2018;

(iv) between the 23 November and 21 December 2018 the respondent only paid the claimant SSP rather than full company sick pay; and

(v) the respondent dismissed her on the 4 January 2019.

[149]We firstly determined whether the conduct alleged by the claimant had occurred. We, in relation to the first allegation, preferred the evidence of Mr Friel, that he had not mimicked the claimant at a business lunch in April 2017. Mr Friel’s evidence was supported by Mr Grant Hunter, who had been in attendance at the lunch, and who confirmed he had not seen or heard anything of the type of conduct alleged. Mr Hunter was named by the claimant as someone who had witnessed the alleged behaviour. Mr Hunter was interviewed by Mr McKie, but could not recall any such behaviour. We decided to dismiss this allegation of harassment because we preferred the evidence of Mr Friel, supported by the fact Mr McKie had investigated the allegation and concluded it did not occur.

[150]We, in relation to the second allegation, also preferred the evidence of the respondent’s witnesses to that of the claimant. The allegation was very general, with the claimant unable to provide details of what was said or when it was said. The claimant told the tribunal that Mr Friel made such comments on several occasions, but could not say when. Mr Longmuir supported the claimant’s evidence, but we have already explained why we have attached no weight to Mr Longmuir’s evidence. We decided to dismiss this allegation of harassment.

[151]There was no dispute regarding the third allegation and the fact the respondent did make an allegation of drink driving to the Police. Ms Gillian McPeake reported that she smelled alcohol from the claimant, who was on her way to her car on the morning of the 15 November. Mr McKie took the decision to report this matter to the Police because the claimant was driving, she was in a company car and it was school time in the morning. The Police called at the claimant’s house and were satisfied with her explanation that she uses alcohol based products to help with her dry mouth and before eating. We were satisfied this conduct did occur and that it was conduct unwanted by the claimant.

[152]We next asked whether the unwanted conduct was related to a relevant protected characteristic. We acknowledged that on the face of it this was related to the protected characteristic of disability because the claimant used the mouth products to assist with her impairment. However, there was an issue of whether the respondent’s witnesses knew the claimant used these products and if so, for what purpose.

[153]We noted the respondent’s witnesses were not asked if they knew the claimant used alcohol-based products for her condition. The claimant told the tribunal that she had been using the products for years and that she had them on her desk at work, although she did not make a fuss about it.

[154]The claimant did not suggest the respondent knew of her using alcoholbased products, and did not suggest Ms McPeake was aware of them. We were not prepared to draw an inference of knowledge from the claimant’s evidence that she kept these products on her desk. There was insufficient in the statement to allow the tribunal to draw an inference: there was no information regarding where on the desk the products were kept, how large the products are, who may have seen them, how often the claimant used them and whether she used them in front of colleagues.

[155]We next asked whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. We were entirely satisfied the conduct did not have the purpose or effect of violating the claimant’s dignity in circumstances where there was a lack of knowledge on the part of the respondent that the claimant used alcohol-based products. The respondent made an innocent error.

[156]There was no dispute regarding the fourth allegation insofar as the respondent did pay the claimant SSP during the period 23 November to 21 December, rather than full contractual sick pay. The respondent did so because under the terms of the Disciplinary Policy, the respondent is permitted to pay SSP if an employee is absent whilst under a disciplinary procedure. The claimant, when referred to this document in cross examination, accepted the respondent had been entitled to make payment of SSP. We decided to dismiss this allegation of harassment.

[157]There was also no dispute regarding the fact the claimant was dismissed on the 4 January 2019. We decided (see below) that the reason for the claimant’s disability was not because of, or related to, her disability. The claimant also accepted this in cross examination. We decided to dismiss this allegation of harassment.

[158]We decided, for these reasons, to dismiss the complaint of harassment. Victimisation

[159]We had regard to the terms of section 27 Equality Act which provides that a person victimises an employee if they subject the employee to a detriment because the employee has done a protected act. The protected act in this case was the raising by the claimant of a grievance against Mr Friel on the 17 July 2018. Section 27(2)(d) of the Equality Act refers to “making an allegation (whether or not express) that a person has contravened the Equality Act.”

[160]The grievance against Mr Friel (page 109) included allegations that Mr Friel had mimicked her, made fun of her speech (which had been impaired by treatment for mouth cancer) and that this amounted to “bullying and victimisation which is unlawful under the Equality Act 2010 in any place of work”. The tribunal was satisfied these allegations against Mr Friel fell within the ambit of section 27(2)(d) above.

[161]The claimant asserted she had been subjected to a number of detriments because she had done the protected act. The detriments were:(a) she was taken through a disciplinary process between 21 August and 13 September 2018;

(b) she was issued with a final written warning on 26 September 2018;

(d) she was subjected to improper behaviour by Mrs MacDonald on the 15 November 2018, when she attempted to pressure the claimant to accept a settlement agreement and prevented her returning to work;

(e) she was vexatiously reported to the Police for suspected drink driving;

(f) she was taken through a further disciplinary process between the 21 November 2018 and 3 January 2019; and

(g) she was dismissed on the 3 January 2019.

[162]The first issue for the tribunal to decide is whether the alleged detriments occurred. We noted, with regard to (a), (b), (e, (f) and (g) above there was no dispute regarding the fact the claimant was taken through a disciplinary process between the 21 August and 13 September 2018; she was issued with a final written warning; she was reported to the Police for suspected drink driving; she was taken through a further disciplinary process between the 21 November 2018 and 3 January 2019 and she was dismissed on the 3 January 2019.

[163]There was a dispute regarding points © and (d). Mrs MacDonald rejected the claimant’s suggestion that she had told the claimant, on the 8 October 2018, that she could not remain in the employment of the respondent. We preferred Mrs MacDonald’s evidence on this point to that of the claimant and we found as a matter of fact that the purpose of the protected discussion was to explore available options. The letter of the 16 October, inviting the claimant to the meeting, made clear that any discussions would have no bearing on any later procedure or subsequent decision taken by the company.

[164]We noted, with regard to the 15 November 2018, that Mrs MacDonald did invite the claimant to take a couple of days to think about the situation in which the parties found themselves. The situation was that the agreement which parties believed had been reached, fell apart, and the parties faced the situation where the claimant may be returning to work after having told colleagues that she was leaving.

[165]We next turned to consider whether the above matters amounted to detriments, and we were satisfied each matter could be described as a detriment. It is then for the claimant to show that she was subjected to the detriment because she did the protected act. The essential question for the tribunal in determining the reason for the claimant’s treatment is, what consciously or subconsciously motivated the employer to subject the claimant to the detriment. In the majority of cases this will require an inquiry into the mental processes of the employer.

[166]We looked at each detriment in turn and asked what was the reason (the real reason) and/or motive for the treatment complained of. The claimant was taken through a disciplinary process between 21 August 2018 and 13 September 2018. The reason for the disciplinary process was that the respondent had, following upon Mr Gary MacDonald’s conversation with Mrs MacDonald at the end of May 2018, carried out an investigation into the complaints raised against the claimant. Mrs MacDonald and Mr Friel met informally with members of staff in late June, and Mr Friel was then asked to conduct a formal interview with staff, which he did on the 2 July. The matters complained of by members of staff formed the basis of two of the three reasons for the invite to the disciplinary hearing.

[167]The third reason for the disciplinary hearing related to the claimant’s disrespectful and inappropriate behaviour towards Mr Friel, as evidenced by her various emails dated 2 May 2018, 11 May 2018 (x 4), 22 June, 25 June, 27 August (x 5) and 3 September.

[168]The claimant’s grievance against Mr Friel (the protected act) was dated 17 July 2018. All of the above matters, with the exception of the emails sent by the claimant on the 27 August and 3 September, pre-dated the raising of the grievance.

[169]The claimant invited the tribunal to conclude the respondent subjected her to the disciplinary process because she had raised a grievance against Mr Friel. We have noted above that the vast majority of matters which formed the basis of the disciplinary allegations against the claimant, occurred prior to the grievance being raised. We therefore considered that the question for the tribunal is whether the fact of the grievance having been raised caused the respondent to invite the claimant to a disciplinary hearing. This matter was not directly put to the respondent’s witnesses and they were not asked, for example, whether any other way of dealing with the staff concerns had been considered.

[170]We noted Mrs MacDonald decided she and Mr Friel should speak to the other members of staff in the claimant’s department to understand whether the concerns were solely those of Mr MacDonald, or whether the concerns were more widely held. They learned, following an initial investigation, that the concerns were held generally by members of staff in the department. Mrs MacDonald and Mr Friel made the claimant aware, in general terms, of the concerns which had been raised. The respondent only decided to proceed with a formal investigation to gather statements because of advice received from Mentor that the matter could not be addressed informally. This explained the reason why the respondent formalised matters.

[171]We also noted that the claimant erroneously believed Mr Friel was the instigator of the complaints about her. This belief arose from the fact she had been told by Mr Longmuir that Mr Friel was “gunning” for her. Mr Friel was not in fact the instigator of the complaints about the claimant, and he was involved in investigating them only because he was asked to become involved by Mrs MacDonald. Mr McManus told the tribunal that “when it became apparent the concerns had been raised by the team and not Mr Friel, she [the claimant] was quite surprised and voiced that if she had known that she probably would not have raised the grievance”. Mr McKie was asked if the claimant had genuine concerns regarding Mr Friel, and he responded “well she said she would not have brought the grievance if she had known the concerns came from staff. She seemed to think Mr Friel had it in for her.”

[172]We next had regard to the fact the claimant was a senior manager. She line managed staff and was expected to adhere to the respondent’s policies and procedures and set an example to her staff. The respondent’s investigation into staff concerns demonstrated there were a range of concerns generally held by all members of the claimant’s team. The claimant accepted some of the allegations made by members of the team were true.

[173]There was also the issue of the claimant’s deteriorating relationship with Mr Friel, as illustrated by the various emails to which we were referred. Mr Friel noted in his email of the 22 June (page 99) that “the questioning tone of your email to me as MD is indicative of your lack of respect”. We accepted Mr Friel’s evidence regarding the fact he met with the claimant on the 22 June to talk through these matters. The claimant told Mr Friel she had no respect for him, only for Mrs MacDonald. Mr Friel set out his concerns to the claimant in an email dated 25 June (page 170).

[174]Mr McKie described the relationship between the claimant and Mr Friel as “deteriorating”: Mr Friel considered the claimant lacked respect and the claimant was angry with the way in which the staff concerns, and her appraisal, had been dealt with and blamed Mr Friel for this.

[175]We were satisfied, based on the above evidence and the dates involved, that real concerns regarding the claimant’s relationship with her staff and with Mr Friel existed prior to the claimant’s grievance being raised.

[176]The respondent’s witnesses were not challenged about the reason for proceeding to a disciplinary hearing or the timing of it. It was not, for example, suggested to the respondent’s witnesses that the claimant’s grievance had been the catalyst for deciding to proceed to a disciplinary hearing. The only suggestion made to Mrs MacDonald, which she denied, was that the respondent had been on a path to dismiss the claimant.

[177]We concluded, having had regard to all of the above factors, that the respondent proceeded to take the claimant through a disciplinary process because the complaints raised by staff, and the deteriorating relationship with Mr Friel merited it. We further concluded that once the respondent had obtained advice from Mentor to formally investigate the staff concerns and obtain signed statements, the pathway to disciplinary proceedings was cast. The fact that all of that happened prior to the claimant raising the grievance against Mr Friel meant that the grievance could not have been the cause of, or reason for, the respondent’s decision to proceed in that way.

[178]The claimant next argued that she had been issued with a final written warning because of having done the protected act. Mr McKie took the decision to issue the final written warning and he did so because the claimant held a senior position in the company, was a representative of the senior management team and was expected to lead by example and demonstrate the company’s values to employees at all times. The misconduct, some of which was admitted by the claimant, was serious.

[179]There was nothing to suggest Mr McKie was motivated to issue a final written warning by the fact of the claimant having raised a grievance against Mr Friel. The grievance had been investigated by Mr McKie, and not upheld by Mr McManus. There was nothing to suggest the fact of the grievance having been raised impacted consciously or subconsciously on the mind of Mr McKie; and this was not suggested to Mr McKie in evidence.

[180]The respondent’s witnesses (Mrs MacDonald, Mr Friel and Mr McKie) were clearly taken aback at the fact of the grievance having been raised, but there was no evidence (either directly or by inference) to suggest the respondent wished to punish the claimant in any way for raising the grievance. The concerns raised by staff regarding the claimant had come as a shock to the respondent because they had not witnessed this of the claimant: the entire focus was on finding out whether the concerns were held by other members of staff and if so, what to do about it.

[181]We also had regard to the fact that it would have been open to Mr McKie to dismiss the claimant, but he did not do so. He carefully noted in the letter of outcome (page 256) that the claimant had indicated an intention to make amends to those affected by her behaviour. Mr McKie, to this end, made a number of recommendations aimed at repairing relations and improving management style.

[182]We concluded, having had regard to all of the above factors, that the reason Mr McKie issued a final written warning was because he considered the misconduct warranted it. Mr McKie was not influenced consciously or subconsciously by the fact of the grievance against Mr Friel having been raised.

[183]The claimant next argued that she had been told by Mrs MacDonald on the 8 October that she could not remain in the respondent’s employment. We preferred the evidence of Mrs MacDonald regarding this matter. Mrs MacDonald was asked in cross examination whether she told the claimant on the 8 October “you can’t stay”. Mrs MacDonald rejected that suggestion. We have stated above that we found Mrs MacDonald to be a credible and reliable witness and we preferred her evidence on this point, to that of the claimant. We accordingly concluded the claimant was not subjected to this detriment.

[184]The claimant next argued that she had been subjected to a detriment on the 15 November 2018 when Mrs MacDonald had acted improperly by attempting to pressure her into accepting the settlement agreement and preventing her from returning to work. There was no dispute regarding the fact Mrs MacDonald did ask the claimant to take a couple more days to consider the settlement which had been offered. The claimant described this as “acting improperly” but that was not a description we could accept in circumstances where there had been a protected conversation, the parties had (on the face of it) agreed settlement terms, the claimant had informed colleagues that she was leaving the respondent’s employment to take up a job elsewhere but the agreement reached had not come to fruition. We considered that in those circumstances it was eminently reasonable for the respondent to invite the claimant to give further consideration to the offer which had been made.

[185]We also could not accept the respondent tried to pressure the claimant into accepting the settlement. We say that because the claimant had obtained legal advice and was able to access that advice in respect of ongoing discussions with the respondent.

[186]We were not satisfied this did amount to a detriment, however, even if it did, there was nothing to suggest Mrs MacDonald invited the claimant to further consider the settlement offer because the claimant had raised a grievance against Mr Friel. Mrs MacDonald acted as she did because of the situation in which the parties found themselves and not because the claimant had raised a grievance against Mr Friel.

[187]The claimant next argued that she was subjected to a detriment when she was vexatiously reported to the Police for drink driving. Mr McKie reported the claimant to the Police following a report from Ms McPeake that she had smelled alcohol on the claimant’s breath. We noted the respondent did not rush into reporting the matter to the Police. Mrs MacDonald and the Directors discussed the matter and took advice from their insurance company and only then acted to report matter.

[188]The claimant did not provide any evidence to suggest the respondent’s witnesses/employees would have been aware she used alcohol-based products to help with her dry mouth. The extent of the claimant’s evidence was that she had the products on her desk and that she did not make a fuss about it. There was nothing to explain whether Ms McPeake worked with the claimant, or saw the products on her desk, or asked her about them or whether it was generally known within the company that the claimant used alcohol-based products to help with her dry mouth.

[189]We concluded, having had regard to the above points, that the actions of the respondent in reporting the matter to the Police were not vexatious, and that it had been reasonable for them to do so. We dismissed the assertion the respondent had taken this action because the claimant had raised a grievance against Mr Friel.

[190]The claimant next argued she was subjected to the detriment of further disciplinary proceedings between November 2018 and January 2019 because she had raised the grievance against Mr Friel. We, in considering this matter, firstly had regard to the fact the grievance against Mr Friel was raised in July 2018, some 4 months prior to the further disciplinary proceedings.

[191]We secondly had regard to the fact that if the respondent had wanted to punish (or dismiss) the claimant for raising the grievance, they had opportunity to do so at the first disciplinary hearing.

[192]We thirdly had regard to the fact there was no dispute regarding the fact a protected discussion had taken place between the parties, a settlement in principle had been agreed, a termination date had been agreed and the claimant had informed colleagues that she was leaving and going to another job. There was also no dispute regarding the fact the claimant knew the protected discussion was confidential. The claimant, notwithstanding this and in response to Ms McPeake asking what she was doing in the office, said “between you and me we are going through a tribunal; they’ve not offered me enough money and Lorraine has asked me to come back on Monday to work my notice”.

[193]We were satisfied the respondent investigated this matter by speaking to Ms McPeake and obtaining a statement from her. The respondent, on that basis, had reasonable grounds to invite the claimant to a disciplinary hearing based on allegations that she had breached confidentiality by disclosing details of the protected discussion which had taken place.

[194]We concluded, having had regard to the above points that the respondent had reasonable grounds to invite the claimant to a disciplinary hearing and that their decision was not caused, or influenced, by the fact the claimant had raised a grievance against Mr Friel some four months earlier.

[195]The claimant also asserted she had been dismissed because of raising the grievance against Mr Friel. We, in considering this matter, had regard to the first and second points made above. The claimant, at the disciplinary hearing, sought to argue the final written warning issued by Mr McKie at the first disciplinary hearing, could not stand because it was based on a lie. The lie was said by the claimant to be that she had been told by Mr McKie, prior to the first disciplinary hearing, just to go along with everything and you would not lose your job. The claimant asserted she had taken this advice and whilst she had not challenged the final written warning, she objected to it now being relied upon.

[196]We preferred the evidence of Mr McKie regarding this matter. Mr McKie was asked specifically in cross examination whether he had said to the claimant “It’ll be fine, just go along with it and you will keep you job”. Mr McKie responded “no, I did not say that”. We preferred and accepted Mr McKie’s evidence. We found as a matter of fact the final written warning was issued and accepted by the claimant, who did not appeal against it.

[197]We noted the claimant did not deny she had made a comment to Ms McPeake regarding the subject matter of the protected discussion and the fact money had been offered. Mr McKie had regard to the fact of the live final written warning already in place, the fact there had been a further instance of misconduct for which he would have issued a further final written warning and decided to dismiss the claimant.

[198]We concluded, in circumstances where there was a live final written warning in place and a further instance of misconduct, that Mr McKie had reasonable grounds to dismiss the claimant. There was no suggestion by the claimant during the disciplinary hearing that this was all happening because she had raised a grievance against Mr Friel: in fact, things had moved on significantly from that time. We further concluded Mr McKie was not motivated consciously or subconsciously by the fact of the grievance having been raised.

[199]We next stood back to consider in the round the claimant’s argument that she had been subjected to all of these detriments because of raising a grievance against Mr Friel. We have referred above to the fact the claimant put Mr Friel at the centre of her removal from the company. The claimant told the tribunal “.. they were dancing to Mr Friel’s tune”; “Mr Friel was behind it all”; “dismissal was what they wanted all along” and “Mr Friel started it and Mrs MacDonald finished it”.

[200]We have set out above our conclusions why we could not accept Mr Friel was at the heart of this, and we do not repeat it hear. Suffice to say, we accepted Mr MacDonald raised concerns with Mrs MacDonald, and it was Mrs MacDonald who decided those concerns should be looked into by herself and Mr Friel. We considered that for this tribunal to accept the suggestion that Mrs MacDonald and the other Directors were “dancing to Mr Friel’s tune” we would have to have accepted that he exerted some power or influence over them. There was no evidence to suggest such power or influence and this was not the impression we formed of the witnesses or their evidence. The evidence tended to suggest that power lay with Mrs MacDonald and whilst she had a management team to run the business, the major decisions rested with her. There was nothing from which to draw the inference that Mrs MacDonald danced to Mr Friel’s tune, or indeed any of the other Directors. We set out above that Mr McKie impressed the tribunal as someone who was straightforward and considered in his approach to the investigation, the disciplinary hearings and the decisions he made. There was nothing to suggest he was influenced by Mr Friel. The evidence demonstrated, to the contrary, that he was of independent mind.

[201]Mrs MacDonald candidly told the tribunal that she had been shocked to hear about the concerns raised by staff because that was not her experience of the claimant. She met with the claimant to try to understand why this had happened and how it could be sorted. All of the parties placed great emphasis on getting “back to normal” and Mr McKie’s recommendations, which included apologising to her team and to Mr Friel, were focussed on enabling that to happen.

[202]We considered there was nothing, apart from the fact of the grievance having been raised, to support the claimant’s contention that she was subjected to detriments because of having raised the grievance. The claimant’s suggestion that Mr Friel was behind it all was not supported by the evidence which demonstrated the concerns had been raised, and held, by members of her team, and that Mr Friel only became involved in investigating those complaints because he was asked to do so by Mrs MacDonald. Further, there was a formal investigation because the respondent acted on the advice of Mentor and Mr Friel’s conduct of that investigation was in the format advised by Mentor.

[203]The respondent had reason to call the claimant to the disciplinary hearings and that conclusion was supported by the fact the claimant accepted some of the alleged misconduct. There was no evidence (either express or from which the tribunal could draw an inference) that the fact of the claimant having raised a grievance against Mr Friel consciously or subconsciously operated on the mind of Mr McKie or Mrs MacDonald. We decided, for all of these reasons, that the claimant could not show the detriments occurred because she had done a protected act. We decided to dismiss this claim. Unfair dismissal

[204]We referred to section 98 Employment Rights Act which sets out the approach a tribunal should take to determining whether a dismissal is fair or unfair. The section makes clear that it is for the employer to show the reason for the dismissal and that it is one of the potentially fair reasons set out in section 98. If the employer is successful at the first stage, the tribunal must then determine the fairness of the dismissal for that reason, and this requires the tribunal considering whether the employer acted reasonably in dismissing the employee for the reason given.

[205]The respondent maintained the reason for the claimant’s dismissal was misconduct in terms of section 98(2)(b) Employment Rights Act. The claimant maintained there was no fair reason for her dismissal in circumstances where her dismissal had been engineered because she would not accept a settlement agreement.

[206]We next had regard to the case of British Home Stores Ltd v Burchell

1980 ICR 303

where it was said that the employer must show:-• it believed the employee was guilty of misconduct;

• it had in mind reasonable grounds upon which to sustain that belief; and

• at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.

[207]We had regard to the investigation carried out by the respondent into the alleged misconduct. The claimant was alleged to have acted inappropriately to her team members and to have acted inappropriately and disrespectfully towards Mr Friel. The concerns of the members of staff were investigated informally by Mrs MacDonald and Mr Friel, and formally by Mr Friel acting on advice from Mentor. We noted all relevant members of staff were spoken to and the claimant did not suggest Mr McKie ought to have interviewed others. The issue regarding Mr Friel was investigated by obtaining the emails said to demonstrate the inappropriate and disrespectful manner of the claimant. The claimant did not suggest other emails should have been taken into account, although she did suggest, in her grievance, that Mr Friel had not treated her appropriately and had made discriminatory comments and mimicked her.

[208]The staff concerns were put to one side whilst the claimant’s grievance was investigated. The investigation of the claimant’s grievance included interviewing the claimant, Mr Friel, Mr Hunter and Mr Adams.

[209]The onus on the employer is to carry out as much investigation as is reasonable in the circumstances. We were satisfied the respondent did carry out as much investigation as was reasonable into the allegations of misconduct and into the claimant’s grievance (which was not upheld). We were further satisfied that on the basis of the investigation the respondent had reasonable grounds upon which to conclude the claimant had acted inappropriately to members of her team, created an environment which meant it was difficult for them to raise questions and that she had acted inappropriately and disrespectfully towards Mr Friel. The claimant in fact admitted some of the concerns raised by staff were accurate.

[210]The claimant’s key criticism of the investigation was that Mr Friel had been gunning for her and that he had been responsible for pressuring staff into making complaints about her management style. The claimant’s opinion was based on Mr Longmuir having told her that Mr Friel was “gunning” for her. The claimant acted on this and it fuelled her suspicion regarding Mr Friel and the whole process followed by the respondent.

[211]The claimant’s belief that Mr Friel had instigated and led the staff complaints was inaccurate. We considered it illuminating that when the claimant learned that Mr MacDonald had initiated the complaints and that Mrs MacDonald had decided to investigate, that the claimant told Mr McManus (and Mr McKie) that if she had known this she would not have raised the grievance against Mr Friel. It was unfortunate the claimant’s mistaken belief regarding this matter tainted her approach to the process which followed.

[212]The claimant was invited to a disciplinary hearing on the 13 September 2018 and Mr McKie decided to issue a final written warning because he was satisfied the alleged misconduct had occurred and that it was a serious matter particularly for a senior manager. The claimant did not appeal the decision to issue a final written warning.

[213]The claimant and Mrs MacDonald subsequently entered into a protected discussion. The tribunal did not hear evidence regarding the details of this discussion: we simply heard that it had taken place and that both parties considered an agreement had been reached. It was agreed the claimant would leave on the 5 November and agreed members of staff would be called to the Boardroom to be told by the claimant that she was leaving to take up a new job. The agreement ultimately fell through and the claimant was asked to attend work on the 15 November and asked to take some more time to consider the offer.

[214]We noted there was no dispute regarding the fact the invitation issued by Mrs MacDonald to the claimant to attend the protected discussion was headed up with the words “without prejudice” and the parties knew and understood the discussions were confidential.

[215]The respondent undertook a further investigation into the allegation of misconduct arising from a breach of confidentiality in respect of the protected discussions. The respondent interviewed and obtained statements from Ms McPeake, Ms McLenaghan and Ms Dearie. The key statement regarding the breach of confidentiality was from Ms McPeake. The respondent interviewed all relevant witnesses and there was no suggestion by the claimant that others ought to have been interviewed as part of the investigation. The respondent carried out as much investigation as was reasonable.

[216]We were satisfied, based on the investigation carried out and the fact the claimant admitted she had made a comment to Ms McPeake regarding the nature of the protected discussion and an offer of money being made, that the respondent had reasonable grounds upon which to believe the claimant had acted as alleged.

[217]The claimant challenged the respondent’s reliance on the final written warning which had been issued in September 2018. She challenged it on the basis Mr McKie had lied to her and told her to just go along with everything and she would keep her job. We have dealt with this issue above and we do not repeat it here: suffice to say we preferred Mr McKie’s evidence and accepted he had not made that comment to the claimant prior to the first disciplinary hearing.

[218]We accepted Mr Wheaton’s submission that it is not for this tribunal to challenge the fairness of the final written warning unless there is discrimination or malfeasance. We have decided (above) that there was no discrimination in this case and no malfeasance on the part of the employer. We were accordingly satisfied that as at the time of the second disciplinary hearing, there was a live final written warning in place on the claimant’s record.

[219]We were satisfied that whilst on a final written warning the claimant committed a further act of misconduct. Mr McKie explained the rationale for his decision to dismiss by stating he would have issued a final written warning for the breach of confidentiality, but as the claimant was already on a final written warning this meant his decision was to dismiss the

[220]We had regard to the case of Iceland Frozen Foods Ltd v Jones

1983 ICR 17

where the EAT emphasised that the tribunal must consider the reasonableness of the employer’s actions and not simply whether they, the members of the tribunal, would have dismissed. It was also said that the “function of the tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

[221]We asked ourselves whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. It is appropriate, prior to answering that question, to have regard to the procedure followed by the employer when dismissing the claimant. The claimant challenged the procedure followed by the respondent because Mr Friel heard the grievance appeal and the appeal against dismissal and the claimant considered this unfair because of her issues with Mr Friel.

[222]There can be no doubt the claimant did not think highly of Mr Friel and in fact told the tribunal that she did not respect him. There can also be no doubt the claimant blamed Mr Friel for her dismissal. In those circumstances it was understandable why the claimant did not want Mr Friel to hear the appeal. However, we must consider other factors which have a bearing on the reasonableness of Mr Friel chairing the appeal.

[223]We had regard to the fact the respondent is a small company with a limited number of Directors. All of the other Directors had been involved in the various stages of the claimant’s case and Mr Friel was the only Director who had not had previous decision-making involvement. We also had regard to the fact Mr Friel was accompanied at the appeal hearing by an HR advisor from Mentor. The respondent took, and acted upon, advice from Mentor throughout this process and Mr McKie, for example, was accompanied to various hearings by an HR advisor.

[224]The claimant refused to participate in the appeal hearing and left Mr Friel with no option but to proceed to review all of the paperwork. Mr Friel, in addition to this, also carried out further investigation into the claimant’s second grievance.

[225]We concluded, having had regard to the above factors, that whilst it was not ideal for Mr Friel to chair the appeal hearing, because of the claimant’s antagonism towards him, the decision to appoint him to hear the appeal in circumstances where no other Directors were available to hear it, was one which fell within the band of reasonable responses which a reasonable employer might have adopted.

[226]We were satisfied the respondent carried out as much investigation into the alleged misconduct as was reasonable, and that they had reasonable grounds upon which to sustain their belief that the claimant had acted as alleged. We were also satisfied the respondent followed a fair procedure. We decided the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted in circumstances where the claimant was already on a final written warning, and committed a further act of misconduct which led to her dismissal. The decision to dismiss was fair.

[227]We, in conclusion, decided to dismiss the claim in its entirety.