Employment Judge P O’DonnellMr Baird for claimantTrade Union (instructed by Representative) for claimantMs Gould (instructed by Counsel) for respondentinstructed by for respondentPinsent Masons for respondentDate 16 September 2022
JUDGMENT
The Judgment of the Employment Tribunal is that the Claimant has not established that he was disabled as defined in s6 of the Equality Act 2010 at the relevant time and so the Tribunal does not have jurisdiction to hear the claims under the 2010 Act. The claims under the Equality Act 2010 are, therefore, dismissed.
REASONS
[1]The Claimant has brought complaints of unfair dismissal under the Employment Rights Act 1996 and disability discrimination under the Equality Act 2010. The condition which is said to amount to a disability is depression.[2]The Respondent does not concede that the Claimant was “disabled” as defined in s6 of the 2010 Act at the relevant time and the present hearing was listed to determine this issue. The dispute arises in relation to whether any effects on the Claimant’s day-to-day living activities were “long term” and “substantial”.[3]At the outset of the hearing, Mr Baird explained that the Claimant was not present as he did not feel fit to attend. No application to adjourn the hearing was made, either in advance or at the hearing. No-one else was being called to give evidence and Mr Baird sought to proceed on the basis of submissions.[4]The Tribunal questioned how it could make findings in fact on which its determination would be based in the absence of any evidence. Mr Baird indicated that he sought to rely on the documents in the joint bundle.[5]After an adjournment to allow her to take instructions, Ms Gould confirmed that the Respondent’s position was that they were prepared to accept that contemporaneous documents said what they bore to say but that any later documents (such as the Claimant’s disability impact statement) should be given no weight where there was no witness to speak to them. On that basis, the Respondent was content to proceed with the hearing.[6]Mr Baird had no objection to proceeding on that basis. The hearing went ahead on the basis of submissions with findings of fact being made from the documents in the bundle. Those documents will be identified below by the page number in the bundle. Findings in fact[7]The Tribunal made the following relevant findings in fact from the contemporaneous documents.[8]The disciplinary process which led to the Claimant’s dismissal started on 18 December 2019 when he was suspended. There was then an investigation and disciplinary process which culminated in the Claimant’s dismissal on 10 July 2020. The Claimant appealed this decision and the appeal was decided on 13 August 2020.[9]The Claimant had no pre-existing diagnosis of depression or any other mental health issue.[10]The Claimant’s GP records are produced at pp92-97:-a. The Claimant attended his GP on 23 January 2020 and described the issue that had arisen at his workplace. He described difficulty sleeping the night before. The GP notes that the Claimant’s blood pressure reading indicated that he was “obviously stressed”.b. On 20 February 2020, the Claimant attended his GP again. He describes that he is stressed at the cancellation of a disciplinary hearing the day before and had been unable to sleep.c. A further meeting between the Claimant and his GP occurred on 5 March 2020. He describes attending Occupational Health with his wife as he felt unable to face it on his own. He says that he is to attend counselling but does not think it will help as it is an “acute thing”.d. A telephone call with the GP occurs on 2 April 2020 during which the Claimant describes himself as “less worried”, that he is sleeping better and doing some DIY. The GP adds a comment that the Claimant’s mood was a bit better.e. The Claimant again speaks to his GP by phone on 21 May 2020. He is described as “not great” and reference is made to a “works doctor” who has said the Claimant is not fit for work but is fit for a disciplinary hearing. The Claimant describes having headaches, difficulty sleeping and pains in chest and back which he describes as feeling like a strain. There is a comment which states “depression screening using questions” but says nothing more than that.f. Another telephone consultation occurs on 18 June 2020 at which the Claimant described the current position in relation to the disciplinary process. In particular, he describes occupational health as deciding he was fit to attend a hearing but that he did not know the criteria for this and states that the assessment was not made with any questions about “sleep, self-harm etc”. It is noted that he is still angry about the situation but wants an end to it.g. The Claimant and his GP again speak by telephone on 23 June 2020 at which he describes the postponement of the disciplinary hearing for a medical report to be provided. It is noted that there was no thought of suicide risk. The GP notes that the Claimant sounds agitated as if pacing during the call and suggests he tries calming music or walk.h. The Claimant calls his GP again on 16 July 2020 to tell her that he has been sacked. He comments that he did not pick up his last prescription.i. The last relevant entry in the records relates to a call on 24 July 2020 in which the Claimant asks for a backdated sickness certificate. It is noted that the Claimant “sounds a bit brighter”.j. There are later entries in the records which occur after the appeal decision and so fall after the relevant date for the assessment of disability status.[11]The Claimant submitted four doctor’s certificates during the disciplinary process stating he was unfit for work; 5 March 2020 (p111), 2 April 2020 (p114), 21 May 2020 (p118) and 18 June 2020 (p119). All four of the certificates describe the reason why the Claimant was unfit as “stress reaction”.[12]The Claimant’s GP also wrote a letter dated 20 February 2020 (p138) which describes the Claimant as “suffering from acute work-related stress with consequent lack of sleep”. It goes on to state that he would not be able to cope with “official proceedings” at this time but says nothing further about the effects of the stress on the Claimant.[13]A further letter was prepared by the Claimant’s GP dated 16 July 2020 (p224) which described him as “suffering from a lack of concentration following a stress reaction from adverse event at work, followed by agitated depression and chronic loss of sleep”. The letter goes on to state that the Claimant is on anti-depressants and gives the opinion that he is unfit to attend a hearing. The letter describes the effects on him as an inability to listen and retain information.[14]The Claimant attended meetings with the Respondent’s Occupational Health provider during the disciplinary process and a number of reports were produced:-a. A report dated 25 February 2020 from an Occupational Health Adviser describes using a “mental health assessment tool” to assess the Claimant and that this showed him to be experiencing moderately severe depression and moderate anxiety. The report goes on to express an opinion that the Claimant is not fit to attend a disciplinary hearing but does not describe any effects on the Claimant’s day-to-day activities.b. A further report dated 17 March 2020 (pp112-113) by the same Occupational Health Adviser describes the Claimant as being less emotional although still upset and angry. It is noted that he has recently started medication and it is expected that it will take a further 2-3 weeks to be effective. The report records the Claimant describing headaches, insomnia, indigestion and gastric upset. It notes that he is sleeping but does not wake up feeling refreshed.c. A report dated 20 May 2020 (pp115-117) is prepared by a Consultant Occupational Physician and this notes the Claimant describing poor sleep, poor concentration, low energy and motivation as well as pain in his chest and back. The physician expresses the opinion that the Claimant is fit to attend a disciplinary hearing and makes some recommendations which he considers would assist the Claimant.d. A further report by the same physician dated 1 July 2020 (pp120-121) confirms the opinion that the Claimant is fit to attend the disciplinary hearing. It says nothing about the effects of the Claimant’s condition on his day-to-day activities. Claimant’s submissions[15]Much of the submissions made on behalf of the Claimant were addressed to the substantive claims seeking to explain the basis of the unfair dismissal and discrimination claims as well as the matters raised by the Respondent which the Claimant disputes. The Tribunal does not propose to set these out in detail as they were irrelevant to the issue being determined at the hearing.[16]Mr Baird drew the Tribunal’s attention to the various documents in the bundle from the Claimant’s GP and the Respondent’s Occupational Health provider referring to their contents.[17]It was submitted that, from the Claimant’s perspective, he is suffering from a continuing depressive disorder.[18]Reference was made to Schedule 1 of the Equality Act and the criteria that a disability had to last at least 12 months. The GP reports indicate that there was a substantial adverse effect regarding matters such as the Claimant taking longer with everyday tasks and having issues with socialising. The Tribunal pauses to note that this is a reference to the contents of the GPs letter of June 2021 (p234) which, for reasons set out below, the Tribunal considers does not provide relevant evidence.[19]Mr Baird also made reference to Balda v Church Housing Association UKEAT0290/18 in relation to the issue of an employer’s knowledge of disability which was not an issue being determined at the hearing.[20]It was said that depression could be a condition which was not obvious or declared by an employee.[21]In rebuttal, Mr Baird commented that the Occupation Health report of 25 February 2020 was clear in what it said. The GP could not speak to the medical records and the notes are not exhaustive. The effects of the Claimant’s condition could fluctuate and there was a reference to the Claimant’s ability to concentrate being affected. Respondent’s submissions[22]Ms Gould pointed out certain issues relating to the fact that the Claimant was not present to give evidence; there was no evidence about what the effects of his condition would be without medication and the effect on his activities at the time.[23]Reference was made to the case of Boyle (below) and the definition of “likely” in the context of the test for disability. It was submitted that this was an objective test based on the facts at the time.[24]The determination of whether the Claimant meets the definition of “disabled” is to be made as at the time at which the discrimination is said to occur (McDougall below). Both the law and the guidance say that matters after the alleged acts of discrimination are not relevant. In this case that would include GP records from after the date of dismissal.[25]In terms of the relevant date, Ms Gould made reference to the final version of the Claimant’s further particulars which start at p76. It was submitted that it was not entirely clear but that the Claimant appears to allege discrimination from his suspension on 18 December 2019 up to the appeal outcome on 13 August 2020.[26]The Claimant accepts that there was no prior history of depression.[27]Ms Gould went on to take the Tribunal through the Claimant’s GP records, the Occupational Health reports, the Claimant’s sick notes and the letters from the GP. For the sake of brevity, the Tribunal does not propose to set this out in detail. The main points which Ms Gould sought to make from these records were that the Claimant’s condition rose from the situation in which he found himself, that, for much of the time, there was no clear indication of substantial adverse effects and no evidence that, if there were such effects, these would last at least twelve months.[28]If the Claimant did not agree with the contents of the documents then he required to give evidence about this. Similarly, although there had been a suggestion that the Claimant’s GP was willing to give evidence about the effects of his condition, the time for this evidence to be given was at the present hearing and this had not happened.[29]Although the Respondent did make some adjustments to assist the Claimant in the disciplinary process, this does not prove he was disabled. An employer could make such adjustments as a matter of good practice and it does not mean that an employee is disabled.[30]The burden of proof is on the Claimant and there is no evidence that he meets the definition of disability. He has failed to demonstrate that he suffered a mental impairment which was likely to last at least 12 months and there was very little evidence that this had substantial adverse effects on his day-to-day living activities.
Relevant Law
[31]Disability is one of the protected characteristics covered by the Equality Act 2010 and s6 of the Act defines disability as a physical or mental impairment which has long-term, substantial adverse effects on a person’s day-to-day living activities.[32]Schedule 1 of the 2010 Act sets out further provisions in relation to the definition of “disability”:- Paragraph 2(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.(4) Regulations may prescribe circumstances in which, despite subparagraph (1), an effect is to be treated as being, or as not being, longterm. Paragraph 5 (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) 'Measures' includes, in particular, medical treatment and the use of a prosthesis or other aid.[33]The Government Guidance on the definition of disability addresses the issue of what can be considered “normal, day-to-day” activities at D2-7.[34]The word “likely” appears in a number of contexts in the provisions relating to the definition of disability. The House of Lords in SCA Packaging Ltd v Boyle [2009] IRLR 746 held that this should be interpreted as meaning “could well happen”.[35]The Tribunal must assess the issues relevant to disability status (for example, whether there are substantial adverse effects, whether the effects are longterm, the likelihood of recurrence) as at the date of the alleged discrimination (McDougall v Richmond Adult Community College [2008] IRLR 227).[36]The Tribunal considers that the starting point for its determination on disability status is the question of the relevant date for assessing whether the Claimant is disabled for the purposes of the Equality Act 2010.[37]The case of McDougall (above) makes it clear that this needs to be assessed as at the date of the alleged discrimination. In this case, the Claimant makes allegations of discrimination about the whole disciplinary process rather than just the decision to dismiss and so the Tribunal considers that the relevant date is the period from 18 December 2019 when the Claimant was first suspended to 13 August 2020 when the appeal decision was given.[38]What this means is that the fact that the Claimant may meet the definition at the present time is not relevant to the Tribunal’s determination.[39]Further, the Tribunal finds that the GP letters in the bundle which are dated after 13 August 2020 do not provide relevant evidence because they describe the present effects on the Claimant. It is the facts as at the relevant date (or, in this case, the relevant period) which the Tribunal has to take into account and those letters do not, on the face of it, describe the effects on the Claimant in the period from December 2019 to August 2020.[40]This is not a case where there was any dispute as to whether the Claimant had an impairment; the Respondent did not seek to challenge this. Rather, the dispute between the parties was whether any adverse effects on the Claimant were both long-term and substantial. The Tribunal proceeds on the basis that the Claimant did have an impairment and focus its judgment on the two issues in dispute.[41]The Tribunal will address the “long term” element of the definition of disability first.[42]It is quite clear in this case that any effects there may have been on the Claimant’s day-to-day activities had not lasted for at least 12 months by the end of the relevant period. There was no pre-existing condition and it was the disciplinary process itself which is said to have triggered the condition which is relied on as a disability. Given that the process lasted approximately 8 months and so any effects on the Claimant’s day-to-day activities had lasted, at most, for that period of time by the date of the appeal decision.[43]In any event, even if the Claimant had sought to rely on the criteria in Schedule 1, paragraph 2(a), it would not have assisted him as he would not have been “disabled” for the purposes of the Equality Act until 12 months had passed and could not bring a claim of disability discrimination in relation to any alleged acts which occurred during those 12 months (Tesco Stores Ltd v Tennant [2020] IRLR 363). Given that all of the alleged acts of discrimination in this case occurred in that period then it would preclude all of his claims of disability discrimination.[44]The Claimant, therefore, has to rely on the “likely to last” criteria in Schedule 1, paragraph 2(b). The difficulty for the Claimant is that he has produced no evidence whatsoever from the relevant period from which the Tribunal could reach the conclusion that any substantial adverse effects on his day-to-day activities were likely to last at least 12 months.[45]There is certainly no formal prognosis from the Claimant’s GP or the Respondent’s Occupational Health about how long any effects on the Claimant is likely to last.[46]The Tribunal bears in mind that it should not focus solely on formal diagnoses or prognoses and look to see if there is information from which it could draw the conclusion that any effects were likely to last 12 months (Nissa v Waverly Education Foundation Ltd UKEAT/0135/18). However, there is no information in the documents which provides evidence from which the Tribunal could draw any conclusion that it was likely that any effects would last at least 12 months.[47]At most, the GP records and Occupational Health reports indicate that the Claimant’s depression was caused by the disciplinary process and there is an implication that the resolution of this process would assist in his recovery. However, this provides no assistance to the Claimant as there is no evidence about how long any recovery was likely to take.[48]The burden of proof is on the Claimant and he has failed to discharge this. There is no evidence that any effects on the Claimant’s day-to-day activities were likely to last at least 12 months.[49]In these circumstances, the Claimant has not satisfied the “long-term” element of the definition of disability in s6 of the 2010 Act and so he had not proved that he is “disabled” for the purposes of the Act.[50]This, on its own, would be sufficient to dispose of the issue of disability status but there is also the “substantial adverse effect” element of the definition of disability. In addressing the “long-term” element, the Tribunal has, to some extent, proceeded by taking the Claimant’s case at its highest and assuming there were substantial adverse effects on the Claimant’s day-to-day activities but now turns to the question of whether there were, in fact, such effects.[51]The Claimant, again, faces the difficulty that he has led very little evidence on this issue. The best person to describe the effects on the Claimant is the Claimant himself but he chose not to attend the hearing and give evidence in support of his claim.[52]The Tribunal has, therefore, had to rely on what is recorded in the GP notes and Occupational Health reports. Whilst these documents do record some symptoms experienced by the Claimant, they are in very brief terms and, for the most part, do not provide any description of the effects on the Claimant’s activities.[53]The Tribunal does bear in mind that a substantial adverse effect is something that is more than minor or trivial and so there is a relatively low bar in assessing this. However, the Tribunal needs some evidence from which it can conclude the Claimant has met the definition.[54]The only reference to any kind of effect on his activities is in the GP letter of 16 July 2020 where it is said that he has difficulty in listening and retaining information. However, this is said in the context of assessing the Claimant’s ability to attend a disciplinary hearing rather than normal day-to-day activities.[55]The Tribunal does note the references to the Claimant having low mood or difficulty in concentrating but it does not consider that it can draw any inference that this caused any substantial adverse effects on his day-to-day living activities without something more. The Tribunal is conscious that conditions such as depression can have a range of effects and different people can cope with these effects differently. The Tribunal does not consider that it can make any assumptions or speculate about how the Claimant was affected without some evidence about this.[56]As noted above, the burden of proof lies with the Claimant and the Tribunal considers that he has failed to produce sufficient evidence to discharge the burden in respect of the substantial adverse effect element of the definition of disability in s6 of the Equality Act.[57]In these circumstances, the Claimant has failed to prove that he meets the definition of disabled as he has not proved that his depression had long-term substantial adverse effects on his day-to-day living activities. The Tribunal does not, therefore, have the jurisdiction to hear his complaints of disability discrimination under the Equality Act 2010 and so those claims are hereby dismissed.
Evidence
[58]The submissions then turn to the relevant law. To avoid duplication with what is set out below, the Tribunal will not repeat this section of the submissions in detail and will focus on particular matters.[59]Reference is made to the relevant statutory provisions and the well known cases of Iceland, Burchell & Hitt.[60]It was submitted that the issue of reasonableness in an investigation does not require that everyone in the vicinity of a fight to be interviewed (Harkins v Scottish Region, British Gas Corp EAT593/80) and the context in which an incident took place needs to be considered (Greenwood v HJ Heinz & Co Ltd [1977] 7 WLUK 140).[61]Where an employee admits the misconduct then the employer may not need to conduct an investigation (RSPB v Croucher [1984] IRLR 425).[62]Some time was spent distinguishing the case of Talon Engineering Ltd v Smith [2018] IRLR 1104 from the present case. This case was specifically referred to during the disciplinary process and Dr Sharp sought to explain why the facts of that case were very different from the present case.[63]Turning to the issues to be determined, it was submitted that there was a potentially fair reason for dismissal, namely, conduct.[64]Dr Sharp then turned to the elements of the Burchell test and started with the issue of whether there was a genuine belief by the Respondent. She set out the allegations which emerged from the investigation and made reference to various policies of the Respondent relevant to these allegations. It was submitted that the Claimant made various admissions during the course of the investigation.[65]Turning to the question of reasonable belief, the submissions again made reference to the admissions by the Claimant during the course of the investigation and to the evidence of other witnesses in support of the argument that there was a reasonable belief.[66]Finally, in relation to the Burchell test, the submissions addressed the reasonableness of the investigation. Again, reference was made to the admissions made by the Claimant before setting out the steps taken in the investigation which, it was submitted, was reasonable.[67]The submissions then turned to the procedure followed by the Respondent which was broken down into various elements.[68]First, it was submitted that the information given to the Claimant was sufficient and Dr Sharp set out what was provided.[69]Second, it was argued that the arrangements for the hearings were reasonable and a chronology of the Respondent’s attempts to convene the disciplinary hearing was set out. It was submitted that the Respondent had tried, over a period of 7 months, to hold the disciplinary hearing but was faced with multiple delays.[70]Third, Dr Sharp submitted that the decision making process was reasonable and she set out the factors which show this.[71]Fourth, it was submitted that Occupational Health was engaged throughout the process.[72]Fifth, it was said that the appeal hearing was fair in all of the circumstances of the case. Reference was made to the terms of the appeal letter and it was submitted that the points actually raised at the hearing sought to extend the scope of the appeal. It was submitted that, despite, this GH sought to give the Claimant the opportunity to present his case and took all matters into account in coming to his decision.[73]The submissions then turned to the band of reasonable responses test. It was said that the allegations fell into the scope of gross misconduct and fell below the standards expected by the Respondent of its employee.[74]The submissions concluded with the Respondent’s position on the matter of remedies.[75]In rebuttal, Dr Sharp made the following submissions:-a. Any suggestion that the disciplinary hearing only took 45 minutes is not correct. The process went on over 7 months and the documents had been read during that time.b. Any notes made by the Respondent were not intended to be verbatim.c. Both GA and GH made it clear that it was not an issue as to who was to blame for the incident but what actually happened between the Claimant and DK.d. The disciplinary process should be looked at as a whole. Claimant’s submissions[76]The Claimant’s agent made oral submissions on behalf of the Claimant.[77]Much of the submissions involved the Claimant’s representative reading out extracts from various policy documents, witness statements, correspondence and other documents to which the Tribunal had been taken in evidence. As with the submissions for the Respondent, for the sake of brevity, the Tribunal does not intend to set out the detail of what was read out and will, instead, focus on the points made as to why the Tribunal should find in the Claimant’s favour.[78]As with the evidence being led on behalf of the Claimant, a number of submissions were also directed towards the Tribunal deciding whether or not the Claimant had done anything wrong and substituting its own decision for that of the employer.[79]The Tribunal identified the following submissions from what was said on behalf of the Claimant:-a. The appeal manager had the opportunity to advise the Claimant in advance whether the appeal was to be a review or re-hearing but did not do so.b. The Claimant lodged a grievance and this should have been dealt with by the Respondent. Instead, it was ignored and this was an issue of consistency.c. The Claimant’s suspension should have been reviewed.d. Nine witnesses to the incident were identified but only six of them were interviewed in the investigation.e. JS asked leading questions when interviewing the Claimant.f. There were clear discrepancies in the conclusions of the investigation.g. The Claimant was not allowed to raise DK’s previous conduct issues.h. The Claimant raised an issue of health and safety which was not addressed.i. In relation to the interaction with Occupational Health, a fair process was important and an employee should be personally examined rather than conclusions being reached on the basis of a report or a review of medical records. The Claimant was not able to deal with matters by himself which was supported by fit notes and GP records.j. It was the Respondent’s decision to go ahead with the disciplinary hearing in the Claimant’s absence.k. It was not accepted that Occupational Health was independent and that the assessment of the Claimant was not conducted properly.l. The statement provided by Mr Banks should not have been used. It had been taken by someone who was not the investigator.m. The Claimant had been honest and admitted what he had done.n. The Claimant’s length of service must have some value in the case.o. There is a difference between physical contact and physical assault.p. The Claimant could have exited the company in July under voluntary severance.q. There was a disregard for the Claimant’s mental health.r. There had not been a reasonable investigation.s. There had not been a reasonable belief; GA had made his decision on the basis of physical contact and changed it to physical assault.t. The appeal was a sham with no intention to deal with the issues.[80]There were also submissions relating to remedy which are not relevant given the Tribunal’s decision on the issue of liability.
Relevant Law
[81]The test for unfair dismissal can be found in s98 of the Employment Rights Act 1996 (ERA).[82]The initial burden of proof in such a claim is placed on the respondent under s98(1) to show that there is a potentially fair reason for dismissal. There are 5 reasons listed in s98 and, for the purposes of this claim, the relevant reason is conduct.[83]The test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test.[84]The test for whether a dismissal on the grounds of conduct (or misconduct) is set out in the well-known case of British Home Stores Ltd v Burchell [1978] IRLR 379.[85]The test effectively comprises 3 elements:-a. A genuine belief by the employer in the fact of the misconductb. Reasonable grounds for that beliefc. A reasonable investigation[86]It is important to note that, due to changes in the burden of proof since Burchell, the employer only has the burden of proving the first element as this falls within the scope of s98(1) with the second and third elements falling within the scope of s98(4).[87]In order for there to be a reasonable belief, especially where there is a dispute as to whether or not the employee committed the misconduct in question, the employer must have some form of objective evidence on which to base their conclusion.[88]Delay in carrying out an investigation is capable of rendering the dismissal unfair (on the basis that the investigation is then not reasonable) even with no evidence of actual prejudice cause by the delay (RSPCA v Cruden [1986] IRLR 83 and A v B [2003] IRLR 405, EAT).[89]On the question of whether the investigation was reasonable, the case of Sainsbury’s Supermarket v Hitt [2003] IRLR 30 is authority for the proposition that the band of reasonable responses test applies to conduct of the investigation and to the dismissal procedure generally.[90]If the Tribunal is satisfied that the requirements of Burchell are met then they still need to consider whether dismissal was a fair sanction applying the “band of reasonable responses” test. The Tribunal must not substitute its own decision as to what sanction it would have applied and, rather, it must assess whether the sanction applied by the employer fell within a reasonable band of options available to the employer.[91]Section 86 of the ERA provides for minimum periods of notice depending on the employee’s length of service; notice of dismissal of at least one week must be given by the employer for employees with more than one month’s service; the length of notice then increases to two weeks after two years’ service with further increases of one week for each year worked up to a maximum of 12 weeks’ notice.[92]Where an employer does not give the correct notice of dismissal then an employee can recover damages for this breach of contract equivalent to the salary they have lost for the relevant period. The Tribunal was given the power to hear breach of contract claims by the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994.[93]An employer is not required to give notice where an employee is dismissed in circumstances where the reason for dismissal is a fundamental breach of contract by the employee. It is commonly the case that such reasons are described as “gross misconduct”. Decision – unfair dismissal Was there a potentially fair reason for dismissal?[94]The Tribunal considers that the Respondent has shown that they had dismissed the Claimant for reasons which would fall within “conduct” for the purposes of s98(1) ERA and that there was, therefore, a potentially fair reason for dismissal.[95]The Claimant had not sought to expressly argue that the reason for his dismissal could not fall within the description of “conduct” (or that there was some other reason for his dismissal) and the Tribunal was of the view that the reason given by the employer clearly fell within that category of potentially fair reason.[96]The Tribunal did hear evidence about the Claimant’s application for voluntary severance and it was not entirely clear what relevance this had to the issues to be determined in the context of the unfair dismissal claim. To the extent that the Claimant was seeking to argue that the prospect of voluntary severance somehow meant that the reason for his dismissal was not that asserted by the Respondent then the Tribunal does not consider that this is the case.[97]It was quite clear from the sequence of events that the prospect of voluntary severance arose some months after the incident which triggered the disciplinary process leading to the Claimant’s dismissal. Indeed, had the Claimant’s disciplinary hearing taken place on the date originally proposed in February 2020 then this disciplinary process would have concluded long before the prospect of voluntary severance even arose.[98]There was absolutely no evidence to suggest that the Claimant was dismissed for any reason other than those set out in the dismissal letter. The reasons set out in the dismissal letter are clearly matters of conduct and so the Tribunal finds that the Respondent has demonstrated that there is a potentially fair reason for dismissal. Did the respondent have a genuine belief in that the claimant had committed the misconduct in question?[99]The Tribunal considers that there was clear evidence from GA that he had a genuine belief in the conduct giving rise to the Claimant’s dismissal.[100]Again, the Claimant did not seek to advance an argument that there was not a genuine belief by the Respondent that he had carried out the conduct in question or that there was some other reason for his dismissal.[101]In his evidence, the Claimant did make a number of comments about the Respondent (in terms of those managers involved in the process) only being concerned with getting him to the next hearing so that they could sack him but he did not assert that they wished to do so for any reason other than the reasons set out in the various pieces of correspondence which record the allegations against him. There was no evidence before the Tribunal that the Respondent had some ulterior motive for his dismissal.[102]To the extent that the issue of voluntary severance has been raised by the Claimant to suggest that there was not a genuine belief in the conduct giving rise to his dismissal then, for the same reasons as set out above, the Tribunal does not consider that there is any basis on which it can conclude that the Respondent did not have a genuine belief given the chronology of events.[103]In these circumstances, there being no evidence to suggest some other reason for the Claimant’s dismissal, the Tribunal concluded that there was a genuine belief by the Respondent. Had there been a reasonable investigation?[104]In assessing this issue, the Tribunal bears in mind that the band of reasonable responses applies in this context; it is not a case of whether the Respondent could have carried out the investigation in some other way but whether what they did was within the band of reasonable actions open to them. In particular, the Tribunal should not substitute its own decision as to what it would have done in the same circumstances.[105]The Tribunal notes that the investigation involved both the Claimant and DK being interviewed at an early stage and then re-interviewed after other witnesses had been interviewed. The investigator interviewed four other witnesses, took photographs of the area in which the incident took place and created a diagram of what had been described.[106]On the face of it, this is a reasonable investigation; the Claimant was given an opportunity to describe his version of events on two occasions; other witnesses were interviewed which allowed for the Respondent to gain a broader picture of the incident.[107]However, the Claimant makes a number of criticisms of the investigation which require to be considered.[108]First, he complains that two persons who were described as being present by SM were not interviewed. Whilst it would be good practice for all potential witnesses to be spoken to by an investigator, the Tribunal does not consider that, in the circumstances of the case, this is something which is outwith the band of reasonable responses. The Tribunal notes that none of the other witnesses nor the Claimant describe these individuals as being present; they are not said to have been close to the incident; they did not have to intervene between the Claimant and DK as other witnesses had. For these reasons, the Tribunal does not consider that not interviewing these witnesses means that the investigation was unreasonable.[109]Second, the Claimant complains that he was asked “leading questions” during his two interviews. Having read the notes of the interviews, the Tribunal does not consider that the questions asked were leading questions. The Claimant’s objection relates to having information put to him about the investigator’s understanding of events but that is not a leading question and it is perfectly proper for an investigator to put such information to the Claimant to give him a chance to respond. Indeed, not putting such information to the Claimant could potentially render the investigation unfair.[110]Third, and related to the second, the Claimant sought to suggest that the investigator must have carried out some interviews before speaking to the Claimant and DK to have the information they were putting to them but that there was no record of any such interviews. However, this is to ignore the fact, as explained by GH, that the investigator would not have been operating in a vacuum and would have some information about what he is investigating from the outset of the process.[111]Fourth, it was said that there were discrepancies in the conclusions reached. Whilst there were some discrepancies between the various witnesses (which the Tribunal will address further below), it was not clear what discrepancies there were in the investigation. The Tribunal considers that the Claimant has confused the section of the investigation report where JS set out a summary of what each witness described to him with JS having reached conclusions about what actually happened. However, a plain reading of the investigation report shows that JS was simply summarising the various interviews and was not reaching any conclusions, which would be a matter for GA.[112]Fifth, there was the statement from Robin Banks which has received at a later date and was noted by KL rather than JS. It is not entirely clear how it is said this renders the investigation as unreasonable; an employer is entitled to take account of any information that comes into their possession before making their decision to dismiss. Presumably if some form of exculpatory information had come to light after JS concluded his investigation, the Claimant would have expected that to be taken into account in his favour. The statement was provided to the Claimant ahead of the disciplinary hearing and he was, therefore, aware of it and had the opportunity to address it.[113]Having taken these into account, the Tribunal does not consider that, either individually or taken as a whole, these are sufficient to take the investigation out of the band of reasonable responses and for it to be unreasonable. Did the Respondent have a reasonable belief?[114]In considering whether the Respondent held a reasonable belief that the Claimant had committed the misconduct in question, the Tribunal bore in mind that it was not a question of whether or not the Tribunal believed that he had done so.[115]The question for the Tribunal was whether there was objective evidence from which the Respondent could come to the view which they had. In this regard, the Tribunal noted that the facts of the case were not significantly in dispute; both the Claimant and DK describe the incident in broadly similar terms (although from their own perspectives in terms of thinking that the other was going to strike them); two of the witnesses (AR and JP) also describe the event in terms similar to the Claimant and DK.[116]The only significant discrepancies come from SM and NH who describe punches being thrown which is denied by the Claimant, DK, AR and JP. The Tribunal notes that GA did not find that punches were thrown (simply that there was physical contact) and so resolves this discrepancy in the Claimant’s favour.[117]It is important to bear in mind that the Claimant faced three allegations; much of the evidence was focussed on the first allegation of physical contact but there were other allegations and this was not a case where the Claimant significantly disputed the accuracy of those latter allegations. He accepted that he used bad language and that he had been shouting. This, in effect, amounts to him accepting the second and third allegations against him to be true. In such circumstances, it is difficult to see how the Respondent could have anything other than a reasonable belief that the Claimant carried out those acts of misconduct.[118]The only issue disputed by the Claimant was the first allegation relating to physical assault. It was accepted by the Claimant that there had been physical contact but that he was not the one who made the contact. DK states that there was physical contact between them with both of them placing hands on each other. The other witnesses either state there was no physical contact at all (AR and JP) or that there were punches being thrown (SM and NH).[119]In these circumstances, the Tribunal considers that it was reasonable for GA to conclude that there had been some form of unwanted physical contact between the Claimant and DK. It is not the case that there was no information from which such a conclusion could be reached. Rather, the Respondent faced a situation where there was no consistent description of what physical contact took place and how this occurred. The Tribunal considers that GA reached a reasonable conclusion that there had been physical contact between the Claimant and DK for which both of them bore responsibility when the incident is viewed as a whole and account is taken of the admitted conduct in terms of shouting and the language used.[120]The Tribunal, therefore, concludes that the Respondent had a reasonable belief in all three allegations. Was the dismissal procedurally fair?[121]The Tribunal has already addressed the conduct of the investigation above and, for the reasons set out previously as to why the investigation was reasonable, has concluded that there was no procedural unfairness in that element of the process.[122]In relation to the disciplinary process itself, the Tribunal notes that the Respondent gave the Claimant multiple opportunities to attend a disciplinary hearing in order to answer the allegations. The Claimant only attended on one occasion and did not attend the hearing at which the final decision to dismiss was made.[123]The Claimant was also given the opportunity to appeal which he did and an appeal hearing was convened. The Claimant attended that hearing and had the opportunity to put his case.[124]The Tribunal also considers that the Claimant was given all the relevant information during the process; he was provided with the investigation pack which included all the information gathered by JS; when additional information came into the Respondent’s possession in the form of the Bank’s statement then this was provided. There was some evidence about a handwritten statement by DK being removed from the investigation pack between one iteration and the next but the Claimant clearly had this in his possession and there was no evidence that the decision to dismiss was made on the basis of information not available to the Claimant.[125]The Tribunal has given particular consideration to the fact that the final decision to dismiss was made in the absence of the Claimant. It is important that an employee is able to put their case to the employer and where a decision to dismiss is made in the employee’s absence then this can be capable of rendering a dismissal unfair.[126]However, this has to be considered in the context of the specific facts of this case:-a. The incident giving rise to the disciplinary process had occurred in December 2019 and by July 2020 the process had not been able to conclude. It had been ongoing for over 7 months.b. The Respondent had arranged multiple hearing dates but, with one exception, these had all been postponed and those postponements had all been at the instance of the Claimant or his representative.c. The one occasion when the disciplinary hearing went ahead, the hearing had been derailed by matters raised by the Claimant’s representative who, rather than engaging with the substantive issues, objected to the involvement of the note-taker and disputed the medical opinion from Occupational Health that the Claimant was fit to attend the hearing. These matters being raised meant that there was no discussion of the actual issues of the case.[127]In these circumstances, the Tribunal does consider that it was within the band of reasonable responses for the Respondent to proceed in the Claimant’s absence; the Claimant had been given multiple opportunities to attend a disciplinary hearing over a lengthy period and, at some point, the process needed to be brought to an end. Indeed, if the Respondent did not take steps to bring the process to an end then they ran the risk that the length of the process could render the dismissal unfair.[128]There were submissions made on behalf of the Respondent that the various postponements of the disciplinary process were, in fact, a deliberate attempt by the Claimant (or on his behalf) to delay the disciplinary process. In particular, reference was made to the recording of the hearing on 22 June 2020 made by AB which continued during an adjournment when GA left the room. The recording was provided to the Respondent in the course of these proceedings and they produced their own transcript at pp372A-372K which includes some differences from the transcript lodged by the Claimant.[129]The relevant passage is at p372I where it is said that AB was encouraging the Claimant to say that he was extremely tired, had a headache or could not focus so that a further adjournment could be sought. AB then went to ask the Claimant how he was feeling and he replied “not bad, so far”.[130]The Tribunal can see how, in light of that, the Respondent has come to a view that there has been a strategy of delay. However, that recording was not available to them at the time and the reasonableness of the decision to proceed with the disciplinary process has to be assessed on the basis of the information known to the Respondent at the time.[131]The Tribunal does not consider that it needs to take a view on this in order to assess whether it was within the band of reasonable responses for the Respondent to proceed with the disciplinary hearing on 10 July 2020. The factors set out above are sufficient for the Tribunal to have reached the conclusion which it has reached on this issue.[132]There was a brief reference to the Talon Engineering case (above) in the submissions made on behalf of the Claimant and it was referred to during the internal process so the Tribunal considers it should address this. The Tribunal agrees with the Respondent that the present case can be distinguished from Talon on the facts. The factual matrices of the two cases are very different; in Talon, there was little to no effort by the employer to afford the employee the opportunity to attend a disciplinary hearing whereas, in the present case, the Respondent had made multiple attempts to hold a disciplinary hearing over a lengthy period and the fact that a hearing of substance did not proceed was not something which could be laid at the feet of the Respondent.[133]The Claimant raises a number of other complaints regarding the process.[134]First, there is the fact that he was suspended and that this was for a long period of time with no review. The Tribunal considers that the decision to suspend the Claimant was entirely within the band of reasonable responses; it was allowed for by the Respondent’s disciplinary policy; the allegations, at the early stage, involved physical violence; there was a need to ensure the integrity of any investigation.[135]The length of time was an inevitable by-product of the fact that the disciplinary process could not be concluded at an early date due to the various postponements to the disciplinary process.[136]There was no evidence of any review by the Respondent but the Tribunal also had no evidence that any review would have had a material difference on the Claimant’s suspension. At best, the suspension may have been lifted but the Claimant would have remained absent from work due to health reasons.[137]Second, the Claimant complains that his complaint about KL was not treated as a grievance and taken through the grievance process nor was any action taken when he had raised the fact that DK had worked two shifts. It was said that this shows inconsistency on the part of the Respondent.[138]The Tribunal has some difficulty in seeing how these matters in any way go to the fairness of the disciplinary process followed in the Claimant’s case. It certainly does not mean that the Respondent was not entitled to take action about the incident involving the Claimant and DK nor does it impact on what was actually done in the process followed in the Claimant’s case or the decision reached.[139]Further, the Tribunal can see why the Respondent did not treat the Claimant’s complaint about KL as a grievance. The email is not framed in such a way as to be clearly raising a grievance (although an employer erring on the side of caution could have treated it as such) and it is noteworthy that the Claimant did not follow-up the email when no action was apparently being taken by the Respondent. It is only raised six weeks later at the outset of the 22 June 2020 hearing in the context of objecting to KL participating in that hearing rather than asking for the grievance procedure to be engaged. If the Claimant had been raising a grievance that he expected the Respondent to action then the Tribunal considers that either he or his trade union representative would have followed this up sooner than that.[140]Third, there was much said in evidence about the conclusion reached by Occupational Health that the Claimant was fit to attend a disciplinary hearing. As the Tribunal made clear during the hearing, none of the witnesses were expert witnesses who could speak to the assessment that had been made and it was not for the Tribunal to decide if that assessment was a proper assessment. The question for the Tribunal was whether it was within the band of reasonable responses for the Respondent to prefer this assessment over what was being said by the Claimant or his GP. The Tribunal considers that it was within the band of reasonable responses to prefer their own Occupational Health adviser.[141]Fourth, there was a complaint that GH did not make it clear in advance of the appeal whether it would be a review or a re-hearing. This is correct but the Tribunal notes that neither the Claimant nor his representative sought any such clarification ahead of the hearing. It would certainly have been best practice for this to have been clarified by all sides to avoid confusion.[142]However, it was quite clear from the transcript of the appeal hearing that GH made it clear during the course of the hearing that he was not re-hearing the disciplinary hearing nor was he re-opening the investigation. It was, therefore, clear by that point as to what would be involved in the appeal.[143]In these circumstances, none of these matters, taken individually or as a whole, mean that the process followed by the Respondent was outwith the band of reasonable responses. In particular, the Claimant was given every opportunity to put his case before he was dismissed and afforded a right of appeal. The Tribunal does not consider that there was any procedural unfairness. Was dismissal in the band of reasonable responses?[144]The Tribunal notes that the other person involved in the incident was also sacked and so there was a consistent approach.[145]Again, the Tribunal reminds itself that it is not for it to substitute its own decision and that the question is whether dismissal was within the reasonable band of responses.[146]It is very difficult to see how dismissal would not be in the band of reasonable responses for an incident involving shouting and swearing in the workplace in which the employer has concluded there was also physical contact. This clearly falls within the definition of gross misconduct within the Respondent’s own policies for which dismissal is a penalty. There was no evidence that the Respondent tolerates such conduct.[147]Reference was made to the Claimant’s length of service but the Tribunal does not consider that this assists him where there is an act of gross misconduct. There is some force in the argument for the Respondent that the expectation on a long serving employee in terms of knowing how to conduct themselves in the workplace may well be greater. It was clear that the Respondent took this factor into account but did not find that it mitigated the Claimant’s conduct. The Tribunal finds that the Claimant’s service does not mean that the decision to dismiss is outwith the band of reasonable responses.[148]The Tribunal, therefore, concludes that dismissal was within the band of reasonable responses.
Conclusion
[149]In these circumstances, the Tribunal has determined that the Claimant’s dismissal was not unfair, there being a potentially fair reason for dismissal which the Respondent was entitled to rely on having come to a genuine and reasonable belief, after a reasonable investigation, as to the Claimant having committed the misconduct in question. Dismissal was clearly within the band of reasonable responses in all the circumstances of the case and there was no procedural unfairness.[150]The claim of unfair dismissal is, therefore, dismissed. Decision – Breach of Contract[151]The Claimant’s breach of contract claim relates to the fact that he was dismissed without notice.[152]There were no particular submissions made on behalf of either party in respect of this claim.[153]The Tribunal proceeds on the basis that if the Claimant was dismissed in circumstances where the Respondent was entitled to dismiss him summarily then there would be no breach of contract. It is commonly the case that such dismissals are described as “gross misconduct” although the legal principle is that where the Claimant has acted in a manner which would amount to a fundamental breach of contract then the Respondent is not bound by the contractual requirement to give notice of dismissal.[154]The Tribunal must be satisfied that the Respondent has proven, on the balance of probabilities, that there was a repudiatory breach by the Claimant and that this was sufficiently serious so as to justify summary dismissal.[155]In the Tribunal’s view, the allegations of misconduct in this case, either singly or taken as a whole, are ones which are serious enough to justify summary dismissal[156]As noted above, the Claimant effectively admitted the second and third allegations relied on as reasons for his dismissal and accepted in his evidence that he had behaved in the manner described. In these circumstances, there is no question that these allegations were proved.[157]It was a feature of this case that almost all of the focus of the evidence was on the allegation of physical assault which meant that the impact of the admissions in relation to the other allegations were effectively ignored by all parties. The Tribunal considers that the admitted matters are, in and of themselves, capable of amounting to a repudiatory breach of contract; they fall within the description of “verbal assault” under the heading of gross misconduct within the Respondent’s own policy; such conduct is clearly capable of creating a loss of trust and confidence by an employer in an employee; there was no evidence that the Respondent tolerated such conduct.[158]The Tribunal, therefore, concludes that the Respondent was entitled to dismiss the Claimant summarily and so the breach of contract claim also fails and is dismissed.